Opinion
Civil Action 9:22cv153
08-14-2023
KEITH WAGNER v. DANIEL DICKERSON
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn, United States Magistrate Judge
Keith Wagner, proceeding pro se, filed the above-styled lawsuit against Daniel Dickerson. The case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Plaintiff paid the required filing fee. The court subsequently entered an order directing the clerk to provide plaintiff was a summons and copy of the complaint so that he could serve the defendant in accordance with Federal Rule of Civil Procedure 4.
Rule 4(m) of the Federal Rules of Civil Procedure states as follows:
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.
More than 90 days have passed since plaintiff was provided with a summons and copy of the complaint for the purpose of service. Plaintiff was granted an extension of time, through including August 1, 2023, to serve the defendant. While the time for service has expired, the record does not reflect the defendant has been served in accordance with Rule 4. As a result, this case should be dismissed without prejudice for failure to properly serve the defendant.
Recommendation
This lawsuit should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
Objections
Within 14 days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file with the clerk specific written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).