Opinion
CIVIL ACTION NO. 3:20-cv-01520
02-03-2021
CHRISTOPHER ALSOP, Plaintiff, v. WARDEN D.K. WHITE, et al., Defendants.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
This action was initiated on August 25, 2020, when the plaintiff lodged his pro se complaint with the Clerk of Court for filing. (Doc. 1.) On September 1, 2020, the plaintiff remitted payment of the requisite $400 filing and administrative fees, and his original complaint was deemed filed. (Doc. 4.) On October 2, 2020, the Clerk issued a summons packet to the plaintiff for service of original process on the defendants. (Doc. 7; see also Doc. 6.) Now, more than four months later, no proof of service or signed waiver of service has been filed with respect to any of the three named defendants.
We note that the complaint raises federal civil rights claims concerning conduct that occurred while the plaintiff was a prisoner. At the time of filing, however, the plaintiff was no longer incarcerated.
I. DISCUSSION
Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part:
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
The fee-paid complaint in this action was constructively filed on August 25, 2020. (Doc. 1.) After payment of the requisite filing and administrative fees, a summons packet was issued to the plaintiff on October 2, 2020, for service on the defendants named in the complaint. (Doc. 7.)
On January 7, 2021, after the 90-day period had expired, the Court entered an Order to Show Cause admonishing the plaintiff that the action would be dismissed if he did not show good cause within 21 days why service had not been made within the 90-day period. (Doc. 8).
The plaintiff has not submitted proof of service upon any of the named defendants, nor has he submitted an executed waiver of service by any of the named defendants. Indeed, he has not responded at all to the Order to Show Cause.
More than 90 days have elapsed since the complaint in this action was filed and a summons was issued. Despite having received notice of possible sua sponte dismissal for failure to timely serve a summons and copy of the complaint on the defendants, the plaintiff has failed to effectuate proper service of a summons and copy of the complaint on the defendants or articulate good cause for an extension of time. Accordingly, it is recommended that this action be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
II. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. This action be DISMISSED WITHOUT PREJUDICE for failure to timely perfect service under Rule 4(m) of the Federal Rules of Civil Procedure; and
2. The Clerk be directed to mark this case as CLOSED. Dated: February 3, 2021
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 3, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: February 3, 2021
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge