Opinion
No. CIV 05-3246-PHX-SMM (DKD).
May 25, 2006
ORDER
Pending before the Court is ABF Freight System's ("ABF") Motion to Dismiss Without Prejudice ("Motion to Dismiss") submitted pursuant to Fed.R.Civ.P. 12(b)(5). (Dkt. 5.) Defendant ABF alleges that Plaintiff Jose Ramon Beltran-Lugo has not timely served ABF with a Summons in accordance with this Court's Order dated November 23, 2005. Plaintiff has not filed a response to ABF's Motion to Dismiss.
Under Rule 4 of the Federal Rules of Civil Procedure, the plaintiff shall serve copies of the summons and complaint on each of the defendants within one hundred and twenty (120) days of the filing of the Complaint. Fed.R.Civ.P. 4(c)(1), (m). If the service is not made upon a defendant within 120 days, the court must dismiss the action without prejudice as to that defendant, or may direct that service be effected within a specified time if the plaintiff shows good cause for the failure. Fed.R.Civ.P. 4(m). The court has taken a lenient attitude toward pro se plaintiffs suing in forma pauperis, especially when they are incarcerated. Under the in forma pauperis statute, 28 U.S.C. § 1915(d), the court has an obligation to appoint a United States Marshall, or other officer of the court, to issue and serve all process. Furthermore, the 1993 Advisory Committee Notes to Rule 4(m) authorize the court to relieve in forma pauperis plaintiffs of the consequences of a dismissal even if there is no good cause shown, in order to protect such plaintiffs from the confusion or delay of an in forma pauperis petition.
While confined in the United States Penitentiary Victorville in Adelanto, California, Plaintiff filed a pro se Complaint seeking to recover damages from Defendant ABF as a result of a motor vehicle accident. Although Plaintiff is incarcerated, he pre-paid the $250.00 filing fee and is not proceeding in forma pauperis. Therefore, neither the in forma pauperis statute, 28 U.S.C. § 1915(d), nor the special considerations given to pro se litigants suing in forma pauperis, apply here.
This Court's Order dated November 23, 2005 warned Plaintiff that if he did not properly serve the Summons and Complaint on each of the Defendants within one hundred and twenty (120) days of the filing of the complaint or within sixty (60) days of the filing of the Order, whichever is later, the action may be dismissed as to each Defendant not served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Dkt. 4). Plaintiff has not filed a notice of service in a timely manner. Nor has Plaintiff requested this Court to direct that service be effected by a United States marshal or other person. See Fed.R.Civ.P. 4(c)(2). Finally, when Defendant ABF filed a Motion to Dismiss (Dkt. 5), this Court advised Plaintiff of his obligation to timely respond to all motions and again warned Plaintiff that his failure to respond could result in a dismissal. (Dkt. 6). Plaintiff has not filed a response to Defendant ABF's Motion to Dismiss.
Accordingly, IT IS HEREBY ORDERED GRANTING Defendant ABF Freight System's Motion to Dismiss WITHOUT PREJUDICE. (Dkt. 5.). The Clerk of the Court shall enter judgment accordingly.