Opinion
CIVIL ACTION 17-294-SDD-RLB
04-29-2019
FREDERICK ROSS (#585778) v. LT. BRIAN HALL, 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 April 29, 2019.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter comes before the Court on Motion to Dismiss filed on behalf of defendant Lance Osbourne (R. Doc. 37). The motion is not opposed.
The pro se plaintiff, an inmate incarcerated at Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Lt. Brian Hall and Msgt. Lance Osbourne complaining that his constitutional rights have been violated through the use of excessive force. The plaintiff seeks compensatory and punitive damages, as well as declaratory relief.
Defendant Osbourne moves to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for failure to timely perfect service. The instant motion seeks dismissal of the plaintiff's claims asserted against defendant Osbourne contending that because service of process was not effected within 90 days of the filing of the Complaint as mandated by Rule 4(m) of the Federal Rules of Civil Procedure, the plaintiff's claims asserted against defendant Osbourne should be dismissed.
On or about August 9, 2018, the plaintiff filed an amended complaint to identify the defendant previously named as Jeffery Osbourne as Lance Osbourne. See R. Doc. 26. On November 20, 2018, the Magistrate Judge granted the plaintiff an additional 45 days to effect service upon defendant Osbourne. See R. Doc. 31. According to a representative of the Marshal's office, the plaintiff completed the standard USM 285 form incorrectly and was instructed to correct the form and return it to the Marshal's office. For reasons unknown to the Court, the plaintiff failed to correct and return the form; therefore, defendant Osbourne has not been served.
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 was instructed to correct and return the USM 285 form in order to effect service upon defendant Osbourne and failed to take the required action to direct service on the defendant for nearly five months after the summons was issued. See R. Doc. 32. Additionally, the plaintiff has not taken any action in this matter since on or about August 9, 2018. It is appropriate, therefore, that the plaintiff's claims asserted against defendant Osbourne be dismissed, without prejudice, for failure of the plaintiff to effect timely service upon him.
RECOMMENDATION
It is the recommendation of the magistrate judge that the defendant's Motion to Dismiss (R. Doc. 37) be granted, dismissing the plaintiff's claims against defendant Osbourne, without prejudice. It is further recommended that this matter referred back to the undersigned for further proceedings herein.
Signed in Baton Rouge, Louisiana, on April 29, 2019.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE