Opinion
04 Civ. 4656 (SHS)(KNF).
May 12, 2005
AMENDED REPORT AND RECOMMENDATION
The Report and Recommendation dated May 5, 2005, has been amended solely to reflect that the Honorable Sidney H. Stein is the assigned district judge.
TO THE HONORABLE SIDNEY H. STEIN, UNITED STATES DISTRICT JUDGE
On June 22, 2004, Kahene Peterkin ("Peterkin") commenced the instant prison conditions action pro se. Peterkin failed to serve a copy of the summons and complaint upon the defendants in this action within 120 days of that date. In an order dated October 27, 2004 ("October 27 Order"), the Court directed that Peterkin effect service of the summons and complaint upon the defendants and file proof of that service on or before November 29, 2004. The October 27 Order advised that "[i]f the defendants are not served with the summons and complaint on or before that date, and if the plaintiff fails to show cause, in writing, why service has not been effected, a report and recommendation will be made to the assigned United States district judge that the complaint be dismissed, for failure to prosecute, pursuant to Rules 4 and 41 of the Federal Rules of Civil Procedure." In an order dated January 21, 2005 ("January 21 Order"), the Court enlarged the plaintiff's time to effect service to February 22, 2005, and advised the plaintiff again that this action could be dismissed if he did not effect service timely. A review of the docket sheet maintained for this action by the Clerk of Court indicates that Peterkin has not filed any proof of service.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss a plaintiff's action for failure to prosecute an action or failure to comply with an order of the court. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, that:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Peterkin did not effect service within the original 120-day period provided by Rule 4(m), or within the additional periods of time provided by the October 27 Order and the January 21 Order. Moreover, he has not submitted anything to the Court in an attempt to show good cause for his failure to comply with the above-noted orders. Accordingly, this action should be dismissed, pursuant to Rules 4(m) and 41(b).
RECOMMENDATION
For the reasons set forth above, I recommend that the instant action be dismissed.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).