Opinion
CIVIL ACTION NO.: 13-00054-BAJ-SCR
11-04-2013
ANDREW WEARY (#100956) v. DR. MCMURDO, ET AL.
RULING AND ORDER
On March 20, 2013, the United States Magistrate Judge issued a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1), recommending that Plaintiff Andrew Weary's complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), without leave to amend (Doc. 4). Plaintiff filed a timely objection to the report and recommendation on April 2, 2013 (Doc. 6).
Having carefully considered the Magistrate Judge's Report, the record, and the applicable law, the Court concludes that the Magistrate Judge's Report is correct, and hereby adopts its findings of fact, conclusions of law, and recommendation.
The Court notes that Plaintiff filed an amended complaint on October 28, 2013 (Doc. 8). After review of the amended complaint, however, the Court finds that Plaintiff has not alleged any new facts or precepts of law that would convince the Court to change its position.
The Court further recognizes that service of process was never executed by Plaintiff. Failure to serve a defendant within the time allowed by Federal Rule of Civil Procedure ("Rule") 4(m), or obtain a waiver of service, gives the Court the discretion to dismiss the complaint. Here, the time allowed under Rule 4(m) to serve the defendants has long expired.
Rule 4(m) states in relevant part:
If a defendant is not served within 120 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.
Accordingly,
IT IS ORDERED that the Magistrate Judge's Report (Doc. 4) is ADOPTED as the Court's opinion herein.
IT IS FURTHER ORDERED the above captioned matter is DISMISSED, without leave to amend, because there is no conceivable, non-frivolous federal claim Plaintiff could assert consistent with the facts alleged in his complaint, and, in the alternative, for Plaintiff's failure to prosecute, in contravention of Rule 4(m).
Baton Rouge, Louisiana, this 4th day of November, 2013.
_____________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA