Opinion
Case No. 2:18-cv-11874
10-12-2018
LISAMARIE JACOBUS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
District Judge Linda V. Parker
REPORT AND RECOMMENDATION I. RECOMMENDATION: The Court should dismiss Plaintiff's action without prejudice, pursuant to Federal Rule of Civil Procedure 4(m), and for failure to show cause. II. REPORT: This matter is before the United States Magistrate Judge for a Report and Recommendation on the Court's September 25, 2018 Order to Show Cause. (DE 11.)
A. Background
On June 11, 2018, Plaintiff, LisaMarie Jacobus, proceeding pro se, filed this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for a review of a final decision of the Commissioner of Social Security denying her applications for social security disability insurance benefits and supplemental security income benefits. (DE 1.) She named as Defendant the Commissioner of Social Security.
On June 18, 2018, the Court entered an Order granting Plaintiff's application to proceed without prepaying fees or costs. (DE 5.) The Court also entered an Order the next day directing Plaintiff to complete service documents and for service of process by the U.S. Marshal. (DE 6.) Specifically, Plaintiff was ordered to "complete and present to the Clerk's Office for issuance, three (3) summonses for each defendant to be served, within fourteen (14) days of the date of this Notice." (Id.)
On July 12, 2018, after receiving improperly completed copies of summons for each Defendant, the Clerk of the Court issued new summons for each Defendant. (DE 8.) And, on July 23, 2018, the Court entered an amended order granting Plaintiff's application to proceed without prepaying fees or costs (DE 9), and an amended order directing Plaintiff to complete service documents for service of process by the U.S. Marshall, specifically directing Plaintiff to "complete and present to the Clerk's Office the following documents within fourteen days....:
• One (1) copy of the complaint for each defendant;
• Two (2) USM 285 forms for each defendant;
• Three (3) summonses for each defendant. (DE 10.) That Order further provided that "upon receipt of the properly completed documents listed above," the Clerk is "directed to process this case for service" and "the U.S. Marshal is directed to serve" the documents upon each defendant "without prepayment of the usual costs for such service." (Id.)
However, when the "properly completed documents" were not presented to the Clerk's office and Defendant Commissioner of Social Security was not served, the Court issued an order to show cause for failure to effect service over Defendant. (DE 11.) Specifically, the Court ordered Plaintiff "to SHOW CAUSE IN WRITING ON OR BEFORE OCTOBER 4, 2018 why the Court should not dismiss the Defendant Commissioner of Social Security from this action and why the Court should allow an extension of time to effect service." (Id. (emphases in original).) The Order further stated that "[i]n the event that Plaintiff fails to provide good cause, the Court will issue a Report and Recommendation that Plaintiff's claims against the Defendant Commissioner of Social Security be dismissed without prejudice." (Id.)
To date, Plaintiff has not responded to the Show Cause Order.
B. Standard
Federal Rule of Civil Procedure 4(m), provides in pertinent part 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.Fed. R. Civ. P. 4(m).
C. Discussion
The record demonstrates that more than 90 days have lapsed since Plaintiff's June 11, 2018 complaint was filed. Plaintiff has failed to show cause, despite being required to do so and despite being warned that such failure would result in a recommendation of dismissal. There is no indication that service has been accomplished and Plaintiff appears to have abandoned this case. The Undersigned therefore RECOMMENDS that the Court DISMISS Plaintiff's action under Rule 4(m).
III. PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response. Dated: October 12, 2018
/s/_________
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record on October 12, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti