Opinion
3:22-cv-125-KRG-KAP
02-28-2024
MAREKUS BENSON, Plaintiff v. WARDEN DENNIS VOUGHT, Somerset County Prison, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
I recommend that the complaint be dismissed without prejudice for failure to make timely service. See Fed.R.Civ.P. 4(m).
Report
Plaintiff Benson filed a pro se complaint, not in forma pauperis, against the Somerset County Jail in August 2022. ECF no. 5.
Because the plaintiff was not proceeding in forma pauperis, in accordance with Rule 4(m) I ordered plaintiff to make service on defendants and file a proof of service on or before December 15, 2022, and advised plaintiff that he could seek service by the Marshal. ECF no. 6. Upon being served the defendant filed a motion to dismiss, and there was no timely reply from plaintiff. In May 2023, the Court rejected my recommendation to dismiss the complaint for lack of prosecution and granted plaintiff's motion to amend the complaint. See ECF no. 22. Shortly thereafter, plaintiff filed an amended complaint. ECF no. 24 and ECF no. 26. It deleted the original defendant and named three new ones. The Clerk added a fourth John Doe defendant “supervisor” mentioned in the plaintiff's caption but not discussed in the complaint itself. I then issued a second Rule 4(m) notice on May 30, 2023, ECF no. 25, stating:
Since plaintiff is not proceeding in forma pauperis, he must serve the three named defendants (Vought, Pelesky, Airmark) as provided in Fed.R.Civ.P. 4(m):
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.
Plaintiff must effect proper service under Rule 4 on defendants and make proof of service under Rule 4(1)(1) on or before August 31, 2023, or the complaint will be dismissed without prejudice as provided in Rule 4(m) as to any defendant
not served. If plaintiff wants the Marshal to make service (at plaintiff's expense) on the defendants he should file a motion requesting an order to that effect.
Plaintiff neither filed a return of service nor sought service by the Marshal. In fact, plaintiff has done nothing in this case since May 2023. When a plaintiff has not made timely service as directed under Rule 4(m) the Court must determine whether good cause exists for the failure to effect service in a timely manner, and if good cause exists grant a necessary extension. If good cause has not been shown, a court still has the discretionary power to grant an extension of time or to dismiss the complaint without prejudice as to the unserved defendants. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
I recommend dismissal without prejudice rather than a further extension of time because judges have no duty to act (and should not act) as paralegal to pro se litigants. See Pliler v. Ford, 542 U.S. 225, 231 (2004), citing McKaskle v. Wiggins, 465 U.S. 168, 183-184 (1984) and Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000). Plaintiff was given an unambiguous date to take a simple action he already demonstrated that he knows how to comply with, and he defaulted without even an explanation, much less a showing of good cause. Dismissal without prejudice, the presumptive sanction prescribed in Rule 4, is the minimum appropriate sanction.
Pursuant to 28 U.S.C.§ 636(b)(1), the plaintiff can within fourteen days file written objections to my recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain