Opinion
Civil Action 9:22cv26
11-07-2022
PATRICK LEE DUNCAN v. MARVIN DUNBAR, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawhorn United States Magistrate Judge
Plaintiff Patrick Lee Duncan, proceeding pro se, filed the above-styled lawsuit. The case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Rule 4(m) of the Federal Rules of Civil Procedure states as follows:
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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Summonses were issued and mailed to plaintiff on June 7, 2022. Plaintiff acknowledged receipt of them no later than July 28, 2022, more than 90 days ago. There is no indication in the record that any of the defendants have been properly served with process or that plaintiff has requested extra time for service. As a result, plaintiff's claims should be dismissed without prejudice.
Recommendation
This lawsuit should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
Objections
Within 14 days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file with the clerk specific written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
SIGNED.