Opinion
CIVIL ACTION NO. 19-371-JWD-RLB
07-20-2020
DOMINIQUE LAMAR RIVERS (#544280) v. LT. JUNEAU, ET AL.
NOTICE
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.
Signed in Baton Rouge, Louisiana, on July 20, 2020.
/s/ _________
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The pro se plaintiff, a person confined at the Louisiana State Penitentiary ("LSP") filed this proceeding pursuant to 42 U.S.C. § 1983 against several defendants alleging that excessive force was used against him.
On July 22, 2019, a summons was issued for defendant Col. Hunt, and the United States Marshal was ordered to attempt service. The summons was returned unexecuted because defendant Hunt is retired. See R. Doc. 8. No further action on the part of the plaintiff to effectuate service upon defendant Hunt appears in the record.
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. The plaintiff has not taken any action in this matter since August of 2019. See R. Doc. 8. It is appropriate, therefore, that the plaintiff's claims asserted against defendant Col. Hunt be dismissed, without prejudice, for failure of the plaintiff to effect timely service upon him.
RECOMMENDATION
It is recommended that the plaintiff's claims against defendant Col. Hunt be dismissed, without prejudice, for failure of the plaintiff to serve the defendant as required by Federal Rule of Civil Procedure 4(m). It is further recommended that this matter be referred back to the Magistrate Judge for further proceedings herein.
Signed in Baton Rouge, Louisiana, on July 20, 2020.
/s/ _________
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE