Watkins v. Love

Full title: JAMAAL WATKINS, Plaintiff, v. C.P.O. NATHAN LOVE, #6993, Defendant

Court: United States District Court, D. Colorado

Date published: Oct 20, 2010

Civil Action No. 10-cv-00358-ZLW-CBS (D. Colo. Oct. 20, 2010)

Opinion

Civil Action No. 10-cv-00358-ZLW-CBS.

October 20, 2010

ORDER

ZITA WEINSHIENK, Senior District Judge

The matters before the Court are Plaintiff's Motion For Default Judgment (Doc. No. 20) and Plaintiff's failure to file proof of service of process on the Defendant. Pursuant to this Court's Order (Doc. No. 10; May 12, 2010), all dispositive motions are referred to Magistrate Judge Craig B. Shaffer.¹ On September 7, 2010, Magistrate Judge Shaffer issued his Amended Recommendation (Doc. No. 23) that the motion for default judgment be denied and that the case be dismissed. Plaintiff timely filed an objection on September 21, 2010.² Plaintiff's objection has been liberally construed because he is pro se. ³

1 See D.C.COLO.LCivR 72.1; 28 U.S.C. § 636(b)(1)(A).

2 Doc. No. 24.

3 See Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007).

The Court has reviewed Plaintiff's objection, the Magistrate Judge's Amended Recommendation, the original motion, and the case file. As required by 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court has reviewed de novo the portions of the Recommendations to which Plaintiff objected. The Court overrules these objections and adopts the Recommendation in its entirety.

Plaintiff's objection does not dispute the core finding of the Amended Recommendation that Defendant has not yet been served. The Court agrees with the Magistrate Judge that the U.S. Marshals service has discharged its duty under the Order Granting Service By United States Marshal (Doc. No. 5; May 17, 2010). It is Plaintiff's burden to properly serve Defendant.⁴ Plaintiff has been given ample time to serve Defendant and his objection indicates he is unwilling or unable to complete service. Therefore, dismissal of the case is appropriate. Accordingly, it is

4 Fed.R.Civ.P. 4(c)(1).

ORDERED that Plaintiff's objection (Doc. No. 24; Sep. 21, 2010) is overruled. It is

FURTHER ORDERED that the Amended Recommendation (Doc. No. 23; Sep. 7, 2010) is accepted and adopted in its entirety. It is

FURTHER ORDERED that Plaintiff's Motion For Default Judgment (Doc. No. 20; Aug. 31, 2010) is denied. It is

FURTHER ORDERED that the amended complaint (Doc. No. 7; Apr. 6, 2010) and cause of action is dismissed without prejudice for failure to timely serve the Defendant, failure to prosecute this civil action, and failure to comply with Fed.R.Civ.P. 4(m) and D.C.COLO.LCivR 41.1.

DATED at Denver, Colorado, this 20th day of October, 2010.