Francis v. Dupree et al

Filing 22

ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATIONS 20 ; ORDERED that the 15 MOTION to Dismiss pursuant to Rules 12(B)(6) & 12(B)(5) is DENIED and the 21 Objection to Report and Recommendation is GRANTED. The time for plaintiff to effect servi ce on Officer Dupree is extended to 10/28/2011; FURTHER ORDERED that the Clerk issue summons & cause service of the summons & complaint upon defendant Anthony Dupree, through USM's service in accordance with 28 USC 1915(d) & FRCP 4(c)(3). Signed by Judge Jay C. Zainey on 8/25/2011.(gbw, )(NEF: MJ Roby & cc: USM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELVIN FRANCIS

CIVIL ACTION

VERSUS

NO.

OFFICER ANTHONY DUPREE, ET AL.

SECTION “A” (4)

10-2498

O R D E R
The Court, having considered the record, the applicable law,
the Report and Recommendation of the United States Magistrate
Judge, and the objection to the Magistrate Judge’s Report and
Recommendation, hereby approves in part the Report and
Recommendation of the United States Magistrate Judge and adopts
it as its opinion in this matter as to the disposition of the
Rule 12(b)(6) challenge.
As to the Rule 12(b)(5) challenge, the magistrate judge
correctly found that Plaintiff did not serve defendant Dupree
within 120 days after IFP status was granted.

In fact, as

explained by the magistrate judge, Dupree was never served in
accordance with the Federal Rules.

Plaintiff’s suggestion that

his IFP status somehow forgives application of the rules of
service is incorrect and Lindsey v. United States Railroad
Retirement Board, 101 F.3d 444 (5th Cir. 1996), cited by
Plaintiff, does not stand for that proposition.
The Court does recognize, however, that Plaintiff is
incarcerated.

Therefore, Plaintiff had to rely on the United

State Marshal to effect service and Plaintiff’s limited resources
prevented him from obtaining a home address for defendant Dupree.

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Under the circumstances the Court is persuaded that it should
exercise its discretion under Rule 4(m) to extend the time for
service for an appropriate period so that Plaintiff can properly
serve Officer Dupree.
Accordingly, and for the foregoing reasons;
It is ORDERED that the MOTION TO DISMISS PURSUANT TO RULES
12(B)(6) AND 12(B)(5) (R. Doc. 15) is DENIED and the Objection
(Rec. Doc. 21) is GRANTED.

The time for Plaintiff to effect

service on Officer Dupree is extended to October 28, 2011.;
IT IS FURTHER ORDERED that the Clerk of Court issue summons
and cause service of the summons and complaint, upon defendant
Anthony Dupree, through the U.S. Marshal’s Service in accordance
with 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure
4(c)(3).

August 25, 2011

____________________________________
UNITED STATES DISTRICT JUDGE
NEF: United States Magistrate Judge
United States Marshal

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