Hodges v. Unknown

Filing 15

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Felton H Hodges...It is recommended that the pltfs claims against deft "Doctor Sandra" be dismissed, without prejudice, pursuant to FRCP 4(m), for failure to serve this deft within 120 days of the filing of the complaint, and that this action be dismissed, without prejudice... Objections to R&R due by 5/27/2009. Signed by Magistrate Judge Docia L Dalby on 5/12/2009. (JDL, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA FELTON H. HODGES (#110748) VERSUS DOCTOR SANDRA, ET AL. NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten (10) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 10 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Signed in Baton Rouge, Louisiana, on May 12, 2009. NO. 07-0874-JVP-DLD CIVIL ACTION

MAGISTRATE JUDGE DOCIA L. DALBY

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA FELTON H. HODGES (#110748) VERSUS DOCTOR SANDRA, ET AL. NO. 07-0874-JVP-DLD CIVIL ACTION

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary, Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against "Doctor Sandra", alleging that the plaintiff's constitutional rights were violated at LSP when he was provided with medication for Hepatitis C, but was not informed that the medication would result in his inability to father children without risk of danger to the children. He alleges that he did obtain this information until "Doctor Sandra" informed him of the potential dangers after the medication had been administered.1 When attempts at service of process upon "Doctor Sandra" through the Louisiana Department of Public Safety and Corrections were unsuccessful because the Department refused to accept service on behalf of this individual without additional identifying information, this Court entered an Order on January 5, 2009, rec.doc.no. 13, directing the plaintiff to "provide to the Clerk of Court, in writing, a full name and/or more specific information regarding defendant `Doctor Sandra' in order that this defendant may be identified and served with process in this proceeding." The plaintiff was further advised that "in the absence of further identifying information which shall permit service of process to be effected upon defendant Dr. Sandra, this defendant shall be dismissed from this proceeding, and the action shall be dismissed for failure of the plaintiff to effect service within the delays allowed by law."

Although the plaintiff has signified the existence of other potential defendants in this proceeding by referring to "et al. drs." in the Caption of the Complaint, the Court does not consider this oblique reference to other parties as effectively naming any additional defendants in this matter.

1

Despite notice and an opportunity to appear, the plaintiff has failed to respond to the Court's Order and has not provided any further information as to the identity of "Doctor Sandra". Rule 4(m) of the Federal Rules of Civil Procedure provides that a Court shall dismiss an action, without prejudice, as to any defendant not served within 120 days of the filing of the Complaint, absent good cause shown. Accordingly, it is appropriate in the instant case that the plaintiff's claims against defendant "Doctor Sandra" be dismissed, without prejudice, pursuant to Rule 4(m). In addition, inasmuch as "Doctor Sandra" is the single named defendant in this proceeding, this action should be dismissed, with prejudice. RECOMMENDATION It is the recommendation of the Magistrate Judge that the plaintiff's claims against defendants "Doctor Sandra" be dismissed, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, for failure to serve these defendants within 120 days of the filing of the plaintiff's Complaint, and that this action be dismissed, without prejudice. Signed in Baton Rouge, Louisiana, on May 12, 2009.

MAGISTRATE JUDGE DOCIA L. DALBY