Opinion
Civil Action 19-399-JWD-SDJ
09-21-2021
WESLEY RICKS #499599 v. KEITH MINOR, ET AL.
NOTICE
SCOTT D. JOHNSON, UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SCOTT D. JOHNSON, UNITED STATES MAGISTRATE JUDGE
The pro se Plaintiff, a person confined at the Louisiana State Penitentiary (“LSP”), filed this proceeding pursuant to 42 U.S.C. § 1983 against Defendants Keith Minor and the Louisiana Department of Public Safety and Corrections, complaining that his constitutional rights have been violated due to the use of excessive force.
Pursuant to the requirements of Rule 4(m) of the Federal Rules of Civil Procedure, failure to serve a defendant within 90 days of commencement of an action is cause for dismissal of that defendant from the proceeding. Although a pro se plaintiff may rely on service by the U.S. Marshal, he may not remain silent and do nothing to effectuate such service and should attempt to remedy any defects of which he has knowledge.
On January 8, 2021, this Court issued an Order for a blank subpoena to be issued to Plaintiff so that he may request that the Louisiana Department of Public Safety and Corrections file the last known address of Keith Minor under seal. Plaintiff was directed to submit the required USM-285 form to the United States Marshal's Office. A review of the record reveals no action on the part of Plaintiff to effectuate service.
On August 5, 2021, Plaintiff was ordered to show cause in writing why his claims against Defendants should not be dismissed for failure to serve Defendants within the time allowed by Rule 4. Plaintiff was specifically informed that, although he may rely on service by the U.S. Marshal if requested, he may not remain silent and do nothing to effectuate such service. See R. Doc. 47.
Plaintiff failed to respond to the Court's show cause order and has not taken any other action to accomplish service. As such, Plaintiff's claims should be dismissed.
RECOMMENDATION
It is recommended that this action be dismissed, without prejudice, for failure of Plaintiff to serve Defendants as required by Federal Rule of Civil Procedure 4(m).