Opinion
Civil Action No. 04-251J.
July 6, 2006
Report and Recommendation
Recommendation
Plaintiff has not filed a return of service in this matter. I recommend that the complaint be dismissed without prejudice.
Report
In October 2004, plaintiff filed a pro se complaint against the Somerset County Prison, where he had been incarcerated. Shortly thereafter he was released. Because he was no longer subject to the Prison Litigation Reform Act's provision for payment of the filing fee in installments, plaintiff was advised that he needed to pay the filing fee or submit a motion to proceed in forma pauperis. Plaintiff paid the filing fee. Plaintiff was given notice that he needed to serve the complaint on the defendant within 120 days in accordance with Fed.R.Civ.P. 4.
There has been no further communication from plaintiff. According to Fed.R.Civ.P. 4(m), where (as in this case) the court has given notice to the plaintiff of the time limits for service, the court may dismiss the complaint on its own initiative if service is not made within 120 days of the filing of the complaint. The complaint should be dismissed without prejudice. Because the running of the statute of limitations is not stopped by the dismissal of his complaint, plaintiff must act promptly to re-file his complaint, and again is advised to seek legal advice.
Pursuant to 28 U.S.C. § 636(b) (1), the parties are given notice that they have ten days to file written objections to this Report and Recommendation.