Lofton, Jr v. Rally et al

Filing 38

MEMORANDUM OPINION by Judge John G. Heyburn, II on 10/03/2013; By separate Order, the Court will dismiss this action against Defendant Michelle without prejudice for failure to serve.cc: Plaintiff, pro se (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11CV-P666-H

DONNY W. LOFTON, Jr.

PLAINTIFF

v.
NURSE MICHELLE

DEFENDANT
MEMORANDUM OPINION

The Court entered an Order that Plaintiff show cause why this case should not be
dismissed for lack of service on the only remaining Defendant. Plaintiff has responded that he is
in the process of having his files and records mailed from the prior legal aide and that he will
need time to find another legal aide at the Kentucky State Reformatory to help with this matter.
The response does not outline any plan of action to ensure service.
This case has been pending almost two years. The Court exhaustively attempted to have
Defendant Michelle served to no avail. At that point, it became Plaintiff’s burden to ensure
service. Where service is attempted by the U.S. Marshal but is unsuccessful, Plaintiff must take
steps to remedy the defect in service. Armant v. Stalder, 351 F. App’x 958, 959 (5th Cir. 2009).
Plaintiff has not explained any efforts he will make to effect service. Given the amount
of time Plaintiff already has had in which to ascertain information about Defendant Michelle so
that she could be served, the Court finds that any further extension of the time for service would
be futile. Accordingly, by separate Order, the Court will dismiss this action against Defendant
Michelle without prejudice for failure to serve. See Fed. R. Civ. P. 4(m) (“If a defendant is not

served within 120 days after the complaint is filed, the court . . . must dismiss the action without
prejudice against that defendant . . . .”).
Date:

October 3, 2013

cc:
Plaintiff, pro se
4412.009

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