Opinion
CASE NO.: 4:18CV835
04-16-2019
NAMON WALTON, Plaintiff, v. LIEUTENANT GEORGEOFF, et al., Defendants.
JUDGE BENITA Y. PEARSON
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
For the following reasons, the undersigned RECOMMENDS that the Court DISMISS Plaintiff's complaint because he has failed to comply with the undersigned's March 8, 2019 Order to complete service upon the named Defendants or show good cause for the delay. ECF Dkt. #12. I. PROCEDURAL HISTORY
On April 12, 2018, Plaintiff Namon Walton ("Plaintiff"), filed a pro se complaint in this Court alleging violations pursuant to 42 U.S.C. §1983 against Defendants Lieutenant Georgeoff and Correctional Officer Tabak at Federal Correctional Institution Elkton ("Defendants"). ECF Dkt. #1. On May 10, 2018, the Honorable Judge Benita Y. Pearson referred this case to the undersigned for general pretrial supervision. ECF Dkt. #5.
On March 8, 2019, the undersigned issued an Order indicating that on September 14, 2018, Plaintiff's motion to extent time to serve Defendants was granted, but as of March 8, 2019, proper service had not been shown. ECF Dkt. #12. The undersigned further indicated in the March 8, 2019 Order that Plaintiff had until April 8, 2019 to complete service of process on the Defendants or show cause for the delay. Id. The undersigned cautioned that failure to comply with the Order would result in the filing of a Report and Recommendation to Judge Pearson recommending that his case be dismissed without prejudice. II. LAW AND ANALYSIS
Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part:
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.Fed. R. Civ. P. 4(m). Accordingly, if a plaintiff fails to timely serve a defendant and shows good cause for failing to do so, the Court must extend the time for service. However, even if a plaintiff cannot show good cause, Rule 4(m) allows the Court the discretion to either dismiss the action without prejudice or to direct that the plaintiff effectuate service within a specified time. Fed. R. Civ. P. 4(m), Commentary.
In this case, the docket shows that Plaintiff was mailed a copy of the March 8, 2019 Order and the Order was returned as not deliverable and unable to forward on March 18, 2019. ECF Dkt. #13. On March 19, 2019, Court staff indicated in a Staff Note on the docket that she had spoken to someone at Plaintiff's last reported address to the Court and he gave Court staff the telephone number of Plaintiff's brother. Plaintiff's brother informed Court staff of Plaintiff's new address and the undersigned's March 8, 2019 Order was resent to Plaintiff at Plaintiff's new address as provided by his brother.
As of this date, Plaintiff has not responded to the undersigned's March 8, 2019 Order and has not contacted the Court to provide an updated address different than that which Court staff had to pursue. Further, as of this date, there has been no attempt to serve Defendants and Plaintiff has not provided good cause for failure to comply with the undersigned's Order. Nor has he contacted the Court with an updated address or with any information whatsoever.
Consequently, the undersigned recommends that the Court dismiss Plaintiff's complaint against Defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for his failure to perfect service upon Defendants. III. CONCLUSION
Plaintiff has failed to timely serve Defendants and fails to provide good cause for said failure. Further, the undersigned finds no other reason to extend the 90-day service deadline. Accordingly, the undersigned recommends that the Court dismiss Plaintiff's complaint against all Defendants without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Dated: April 16, 2019
/s/George J . Limbert
GEORGE J. LIMBERT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this notice. Failure to file objection within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).