Opinion
CIVIL ACTION NO. 3:20-cv-00300
10-29-2020
WAYNE ADAM RICKERT, Plaintiff, v. FREDERICK M. MAURIN, Commissioner Region II, Defendant.
(MANNION, J.)
() REPORT AND RECOMMENDATION
This is a pro se civil rights action, initiated by the filing of a fee-paid complaint on February 20, 2020. (Doc. 1.) The plaintiff in this action, Wayne Adam Rickert, is or was an applicant for supplemental security income benefits. He has brought this case against Frederick M. Maurin, a regional social security commissioner, apparently alleging fraud and disability discrimination in connection with his supplemental security income benefits application process. He seeks an order directing the defendant to pay benefits, including back pay.
I. DISCUSSION
Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part:
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).
The fee-paid complaint in this action was filed on February 20, 2020. (Doc. 1.) A summons packet was issued to the plaintiff that same day for service on the defendant named in the complaint. (Doc. 2.)
On October 1, 2020, more than four months after the 90-day period had expired, the Court entered an Order to Show Cause admonishing Rickert that the action would be dismissed if he did not show good cause within 14 days why service had not been made within the 90-day period. (Doc. 4).
Rickert has not submitted proof of service upon the defendant, nor has he submitted an executed waiver of service by the defendant. Indeed, he has not responded at all to the Order to Show Cause.
More than 90 days have elapsed since the complaint in this action was filed. Despite having received notice of possible sua sponte dismissal for failure to timely serve a summons and copy of the complaint on the defendant, Rickert has failed to effectuate proper service of a summons and copy of the complaint on the defendant or articulate good cause for an extension of time. Accordingly, it is recommended that this action be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
II. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. This action be DISMISSED WITHOUT PREJUDICE for failure to timely perfect service under Rule 4(m) of the Federal Rules of Civil Procedure; and
2. The Clerk be directed to mark this case as CLOSED. Dated: October 29, 2020
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 29, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: October 29, 2020
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge