Opinion
24-1087-JWB
11-14-2024
CARL E. WATSON, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS and OPTUM, Defendants.
MEMORANDUM AND ORDER
JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE.
This matter is before the court on Magistrate Judge Gwynne Birzer's Report and Recommendation (“R&R”) which recommends dismissal of this action for failure to timely serve and lack of prosecution. Plaintiff has not objected to the R&R and the time for doing so has now passed. The R&R is ADOPTED for the reasons stated herein.
I. Facts and Procedural History
On May 29, 2024, Plaintiff filed this civil rights complaint against Defendants Optum and the Veterans Administration (“VA”). (Doc. 1.) A summons was issued to Plaintiff as to the VA, U.S. Attorney, and U.S. Attorney General (directed to the U.S. Department of Justice) on May 29, 2024. Since that time, no return of service or other confirmation of service of process has been filed which would demonstrate service upon the VA before or after the expiration of the August 27, 2024 deadline. Further, no summons has even been issued to Plaintiff for service on Optum. II. Standard
Pro se pleadings are construed liberally, but a district court cannot assume the role of an advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). And pro se plaintiffs must follow the same rules of procedure that govern represented litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Plaintiff was informed that he must object to the R&R within 14 days and he has not done so. “In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)).
III. Analysis
Magistrate Judge Birzer recommends dismissal of Plaintiff's complaint for lack of prosecution. This action was filed on May 29, 2024, and Plaintiff failed to serve Defendants within 90 days as required under Federal Rule of Civil Procedure 4(m). Magistrate Judge Birzer issued an order to show cause on September 20, 2024. (Doc. 7.) Plaintiff failed to respond to the show cause order. Plaintiff has also failed to make any effort to effect service on these Defendants. Magistrate Judge Birzer issued an R&R recommending dismissal for failure to prosecute. Plaintiff has not objected to the R&R.
After review, the court finds that dismissal without prejudice for lack of prosecution is warranted.
IV. Conclusion
Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.