Opinion
C.A. No. 03-426 S
April 5, 2004
Report and Recommendation
On September 18, 2003, Robert Pizzaro, an inmate incarcerated at the Adult Correctional Institutions, filed a Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth and Fourteenth Amendment rights. Having not effected proper service on the named defendants, plaintiff was ordered to show cause why this case should not be dismissed. Plaintiff filed a Response to the Show Cause Order. The Response has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I find that the plaintiff has failed to show cause why this case should not be dismissed.
Discussion
On September 18, 2003, Robert Pizzaro filed a Complaint naming as defendants: AT. Wall, Director of the Rhode Island Department of Corrections ("DOC"); Walt Whitman, Warden, Maximum Security; James Vierra, Deputy Warden, Maximum Security; Jake Gadsen, Assistant Director; Robert Catlow, Chief, Special Investigations Unit; Lynda Rose, Investigator; Lieutenant Orden; Counselor Vickie; and Officer Buster. Plaintiff never properly served any of the defendants. Despite his failure to serve the named defendants, plaintiff filed a motion for default, which was granted by the Clerk of Court. Thereafter, plaintiff attempted to compel the relief sought in the Complaint. In the meantime, the named defendants learned of the default and promptly filed a motion to set it aside. The motion to set aside the default was granted.
The Court then ordered the plaintiff to show cause, in writing, why his Complaint should not be dismissed for a lack of prosecution due to his failure to effect timely service, in compliance with Fed.R.Civ.P. 4(m). Rule 4(m) provides in relevant part:
[i]f service of the summons and the complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend that time for service for an appropriate period.
In his Response to the Show Cause Order, plaintiff indicates that the defendants have unlimited resources and he is "handicapped by his incarceration." See Plaintiff's Response at 2. Plaintiff claims that his pro se status should excuse his failure to serve the defendants. While this Court adheres to the Supreme Court's admonition that pro se litigants should be afforded an extra degree of solicitude, see e.g Haines v. Kerner, 404 U.S. 519 (1972), plaintiff's "[p]ro se status . . . is not automatically enough to constitute good cause for purposes of Rule 4(m)." See Mclsaac v. Ford, 193 F. Supp.2d 382 (D. Mass. 2002) (quoting Wright Miller, Federal Practice and Procedure: Civil 3d § 1137, at 342 (2002)). Indeed, the record demonstrates that this Court sent the plaintiff detailed instructions on how to effect service. See Court File, Letter from the Clerk of Court, September 19, 2003. Despite these detailed instructions, plaintiff failed to follow them and properly serve the defendants.
Plaintiff asserts in his Response that he attempted to effect service by mailing to AT. Wall, the Director of the DOC, copies of the Complaint and the necessary waiver documents. However, in his Affidavit filed on December 5, 2003 in support of his motion for default, plaintiff indicated that he mailed copies of the Complaint and necessary waiver documents to Michael Grant, Esq., legal counsel at the Department of Corrections. Whichever is the accurate, neither constitutes proper service of the named defendants. Moreover, after the plaintiff did not receive the return of service receipts from any of the defendants, plaintiff made no effort to ensure that each named defendant was properly served. Rather, he rushed to the courthouse and filed a motion for a default, without filing the requisite return of service forms.
Other than blaming the defendants and his incarceration, plaintiff fails to offer any credible reason for his failure to properly effect service. When presented with no good reason for the lack of service, this Court cannot find cause to stave off dismissal. It is the plaintiff's responsibility to effect proper service. See Fed.R.Civ.P. 4(c)(1). Accordingly, I find that the plaintiff has failed to show cause why this case should not be dismissed, without prejudice.
Conclusion
For the reasons stated above, I find that the plaintiff has failed to show cause why this case should not be dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).