Opinion
Civil Action No. 05-cv-01429-PSF-BNB.
May 31, 2006
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter comes before the Court on the Recommendation of the Magistrate Judge filed May 15, 2006 (Dkt. # 21) in which he recommended dismissal of Defendants Casias and Arlint from this case. The Recommendation of the Magistrate Judge amply sets forth the background that leads to his recommendation to dismiss these defendants due to the pro se plaintiff's failure to serve them with the complaint and need not be repeated here.
The Recommendation also advises plaintiff that he has ten days within which to file an objection to the recommendation. Plaintiff did not timely file an express objection to the recommendation, but on May 23, 2006 he filed a document captioned "Response to Order Directing Plaintiff to Show Cause" (Dkt # 23). Apparently that filing was made in response to an Order to Show Cause issued by the Magistrate Judge on May 1, 2005, requiring plaintiff by May 15, 2006 to demonstrate why the individual defendants should not be dismissed for failure to prosecute. The Court will treat that filing as an objection to the Recommendation, and has reviewed plaintiff's assertions. In addition, on May 30, 2006, plaintiff filed an untimely objection to the Recommendation of the Magistrate Judge in which he simply restates what he argues in his response to the Order to Show Cause.
The responses filed by plaintiff do not directly address the finding of the Magistrate Judge that service has not been effected on the individual defendants. Plaintiff instead argues that although he has not served the individual defendants, and although they had not formally waived service when requested to do so, they nonetheless "[o]n March 15, 2006 . . . filed their answer with the Clerk of the Court." (Response to Order to Show Cause at ¶ 2).
The Court has carefully reviewed the Answer to Amended Complaint and Jury Demand filed on March 15, 2006 (Dkt # 15). That answer is filed only on behalf of Defendant City of Trinidad, and not on behalf of any of the individually named defendants. Counsel signing that answer explicitly state that they are appearing for Defendant City of Trinidad only and do not suggest in any way that they are filing an answer for the individual defendants. In fact, in a filing made on March 24, 2006, plaintiff appears to understand this as he stated that no defendant had made a response to his requests for waiver of service ( see Dkt. # 16 at ¶ 5).
Accordingly, the Magistrate Judge is correct that no service has been made on, nor has service been waived by, Defendants Casias and Arlint. Plaintiff has failed to comply with the Magistrate Judge's orders regarding effecting service, and his untimely and meritless response to the Show Cause Order does not provide any basis for rejecting the Recommendation.
Accordingly, the Recommendation of the Magistrate Judge (Dkt # 21) is therefore accepted, and Defendants Casias and Arlint are dismissed as defendants in this case.
The Clerk of the Court is directed to modify the caption accordingly.