Opinion
CIVIL ACTION NO: 06-4289 SECTION: "I" (4).
February 28, 2007
PARTIAL REPORT AND RECOMMENDATION
This matter was referred to the United States Magistrate Judge to conduct a hearing, including an Evidentiary Hearing, if necessary and to submit Proposed Findings and Recommendations for disposition pursuant to Title 28 U.S.C. § 636(1)(B) and (C), § 1915(e)(2), and § 1915A, and as applicable, Title 42 U.S.C. § 1997e(c)(1) and (2).
I. Factual and Procedural Background
The plaintiff, John Cyrio, filed a complaint pro se and in forma pauperis pursuant to Title 42 U.S.C. § 1983 alleging that, while incarcerated, he was beaten by several guards. In connection with his suit, he named Lt. Corbin Hunt, Lt. Vernon Smith, Lt. Wade Rigdon, Sgt. Ozelia Spiker, and Sgt. John Odom as defendants.
The complaint was filed on August 18, 2006. However, defendant Sgt. Ozelia Spiker was not served within 120 days of that date as required by Fed.R.Civ.P. 4(m). Instead, the summons was returned unexecuted on August 31, 2006. The summons stated that "no one by that name works @ WCI."
In this case, because Cyrio failed to serve Sgt. Ozelia Spiker within the 120 days as required by the Federal Rules, this Court issued a Rule to Show Cause ordering Cyrio to show cause why his claims against Sgt. Spiker should not be dismissed for failure to comply with the mandates of Fed.R.Civ.P.4(m). ( See Rec. Doc. No. 18). Cyrio responded to the Order with a memorandum reciting the facts found in this complaint, and stating that Sgt. Spiker is the officer over the dorm.
Cyrio did not provide any reason why he failed to serve Sgt. Spiker within the time frame contemplated by the Federal Rules nor did he provide another name for service of the summons. Therefore, the claim against Sgt. Spiker should be dismissed for failure to comply with Fed.R.Civ.P. 4(m).
II. Recommendation
For the foregoing reasons, it is RECOMMENDED that John Cyrio's claims against the defendant Sgt. Ozelia Spiker be DISMISSED WITHOUT PREJUDICE for failure to comply with Fed.R.Civ.P. 4(m).
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996).