Opinion
C.A. No. 00-104 T
June 17, 2002
Report and Recommendation
Plaintiff Charles A. Austin, pro Se, has filed an Amended Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. Plaintiff names as defendants Dr. Anne Spaulding, Dr. William Chang, Dr. Scott Allen, Dr. Tej Bansal, Erlinda Vorasingha, Dr. Motola, Joseph Marocco, Laura Townsend, Thomas Partridge, Jake Gadsden, Jeffrey Laurie and the Rhode Island Department of Corrections — Adult Correctional Institution. Dr. Chang has moved to dismiss, since he has not been served with a copy of the Complaint or the Amended Complaint, and cites 12(b)(6) and 4(m) of the Federal Rules of Civil Procedure as his basis. Although brought pursuant to Fed.R.Civ.P. 12(b)(6) and 4(m), this court will construe Dr. Chang's motion as one brought pursuant to Fed.R.Civ.P. 12(b)(5) and 4(m).
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that Dr. Chang's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) and 4(m) be granted.
Background
Plaintiff Charles A. Austin, pro se, currently incarcerated at the Adult Correctional Institution, Cranston, Rhode Island, filed a Complaint on March 10, 2000, pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. Thereafter, on April 17, 2000, plaintiff filed an Amended Complaint with the Court. Plaintiff, however, never served the original Complaint nor the Amended Complaint on Dr. Chang. In fact, Plaintiff was given additional time, until July 16, 2001, to serve the Amended Complaint on Dr. Chang and, to the date of this writing, has not done so. Since plaintiff has failed to effectuate service, Dr. Chang has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) and 4(m).
Discussion
Rule 12(b)(5) of the Federal Rule of Civil Procedure provides for a dismissal of actions where there is an insufficiency of service of process. See Fed.R.Civ.P.12(b)(5). Rule 12(b)(5) challenges the mode of the delivery of the process, or the lack of delivery of the summons and the complaint. See Crane v. Battelle, 127 F.R.D. 174, 176 (S.L.Cal. 1989). Here, plaintiff failed to serve a copy of the Amended Complaint, the live pleading in this case, on Dr. Chang. Thus, dismissal under Fed.R.Civ.P. 12(b)(5) is appropriate.
Additionally, Rule 4(m) of the Federal Rules of Civil Procedure provides a time limit for service. When service of the Complaint is not done within the time frame prescribed by Rule 4(m), a dismissal is also appropriate. Rule 4(m) provides, in pertinent part:
Time Limit for Service. If service of the summons and the complaint is not made upon the individual defendant within 120 days after the filing of the complaint, the court, upon motion or 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 . . .
Here, plaintiff filed his Amended Complaint on April 17, 2000. Thereafter, he had 120 days, or until about August 17, 2000, to serve it on the defendants. See Fed.R.Civ.P. 4(m). The Court then granted the plaintiff additional time to effect service, until July 16, 2001. Plaintiff, to the date of this writing, has failed to serve the Amended Complaint on Dr. Chang. Thus, a dismissal pursuant to Rule 4(m) is also appropriate.
Accordingly, since the plaintiff has failed to serve Dr. Chang with a copy of the Amended Complaint, Dr. Chang's motion to dismiss pursuant to Rule 12(b)(5) and 4(m) should be granted. I so recommend.
Conclusion
Accordingly, for the reasons stated above, I recommend that Dr. Chang's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) and 4(m) should be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).