Walker v. McKey

Full title: ROY WALKER v. JEREMY MCKEY, ET AL.

Court: United States District Court, Middle District of Louisiana

Date published: Oct 15, 2021

Civil Action 19-00396-BAJ-RLB (M.D. La. Oct. 15, 2021)

Opinion

Civil Action 19-00396-BAJ-RLB

10-15-2021

ROY WALKER v. JEREMY MCKEY, ET AL.

BRIAN A. JACKSON, JUDGE.

RULING AND ORDER

BRIAN A. JACKSON, JUDGE.

Before the Court is Defendant Darian Thompson's Motion for Summary Judgment (Doc. 40). The Motion is unopposed. The Magistrate Judge has issued a Report and Recommendation (Doc. 42), recommending that the Court grant Defendant's Motion for Summary Judgment and dismiss Plaintiff's claims against Thompson with prejudice. (Id. at p. 10). The Magistrate Judge further recommends that the Court dismiss Plaintiff's claims against Defendant Gayland without prejudice for failure to effect timely service on Gayland.¹ (Id.). Finally, the 1 Magistrate Judge recommends that the Court decline the exercise supplemental jurisdiction and dismiss this matter in its entirety. (Id.). There are no objections to the Report and Recommendation.

1 The Report and Recommendation notes the following:

As to defendant Gayland, a review of the record reveals that EMT Gayland has not been served because service was not accepted by the Department of Corrections as to this unknown employee. See R. Doc. 7. 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 informed of the lack of service, and has failed to take action to identify or otherwise direct service on defendant Gayland. See R. Doc. 7. It is appropriate, therefore, that the plaintiff's claims asserted against defendant Gayland be dismissed, without prejudice, for failure of the plaintiff to effect timely service upon said defendant.

(Doc. 42, n. 2).

Having carefully considered the underlying Complaint, the Motion at issue, and related filings, the Court APPROVES the Magistrate Judge's Report and Recommendation, and ADOPTS it as the Court's opinion herein.

Accordingly, IT IS ORDERED that Defendant Darian Thompson's Motion for Summary Judgment (Doc. 40) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's claims against Defendant Darian Thompson be and are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff's claims against Defendant Gayland be and are hereby DISMISSED WITHOUT PREJUDICE for failure to effect timely service upon Defendant Gayland.

IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction. 2

IT IS FURTHER ORDERED that the above-captioned matter is hereby DISMISSED in its entirety. 3