Opinion
Civil Action No. 14-cv-01421-REB-MJW
10-08-2014
FRANKLIN LEE FORTNEY, JR., Plaintiff, v. DR. HOWARD, Defendant.
REPORT AND RECOMMENDATION on
ORDER TO SHOW CAUSE
(Docket No. 15)
Michael J. Watanabe United States Magistrate Judge
This case is before the undersigned on an Order of Reference to United States Magistrate Judge issued by Judge Robert E. Blackburn on July 7, 2014 (Docket No. 11).
BACKGROUND
On August 14, 2014, the Court held a Status Conference with Petitioner. At this Status Conference, the Court explained to Petitioner that he was required to serve the Defendant with a summons and copy of the Complaint under Federal Rule of Civil Procedure 4. Plaintiff reported that Defendant could not be located because Defendant was no longer employed at the jail at which Plaintiff encountered him; the Court explained to Plaintiff that the Court could not help Plaintiff locate Defendant's current address. At the Status Conference, the Court entered an Order to Show Cause (Docket No. 15) directing the Plaintiff to show cause no later than October 8, 2014, why the case should not be dismissed for failure to serve Defendant and failure to prosecute.
At the Show Cause Hearing on October 8, 2014, Plaintiff appeared by telephone and reported that he had not yet served Defendant.
LAW
Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part:
If a defendant is not served within 120 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.Fed. R. Civ. P. 4(m). In addition, Local Rule 41.1 provides:
A judicial officer may issue an order to show cause why a case should not be dismissed for failure to prosecute or failure to comply with these rules, the Federal Rules of Civil Procedure, or court order. if good cause is not shown, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.D.C.COLO.LCivR 41.1.
FINDINGS OF FACT & CONCLUSIONS OF LAW
The Court finds that:
(1) Plaintiff has provided no proof of service upon Defendant, and in fact Defendant has not been served with process in this case.
(2) The Prisoner Complaint (Docket No. 1) was filed on May 20, 2014, more than 120 days ago, and Defendant has not shown good cause for his failure to effect service.
(2) The Court ordered Plaintiff to effect service or otherwise show cause why this case should not be dismissed, and Defendant neither effected service nor shown good cause.
(3) Plaintiff has had a full and fair chance to be heard and has had adequate warning that his case might be dismissed for failure to effect service. The Court concludes that:
(1) This case should be dismissed without prejudice under Fed. R. Civ. P. 4(m).
(2) This case should be dismissed without prejudice under Local Civil Rule 41.1.
Based upon the foregoing, it is hereby RECOMMENDED that the Court dismiss this case without prejudice. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions, Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). Date: October 8, 2014
Denver, Colorado
s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge