Hongo v. Adams et al

Filing 14

REPORT AND RECOMMENDATIONS... It is the recommendation of the magistrate judge that the plaintiff's claims against defendants Capt. Smith, Capt. Williams and Dr. Ladd be dismissed for failure to serve the defendants pursuant to Rule 4(m), Fed.R.Civ.P. Objections to R&R due by 1/4/2010. Signed by Magistrate Judge Stephen C. Riedlinger on 12/14/2009. (CMM,)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA RONNIE K. HONGO (#98420) VERSUS LT. ADAMS, ET AL NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten 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 accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, December 14, 2009. CIVIL ACTION NUMBER 09-122-JJB-SCR STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA RONNIE K. HONGO (#98420) VERSUS LT. ADAMS, ET AL CIVIL ACTION NUMBER 09-122-JJB-SCR MAGISTRATE JUDGE'S REPORT This case is before the court on the order to the plaintiff to show cause why his claims against defendants Capt. Smith, Capt. Williams and Dr. Ladd should not be dismissed for failure to serve the defendants pursuant to Rule 4(m), Fed.R.Civ.P. Record document number 13. On November 9, 2009, the plaintiff was ordered to show cause why his claims against defendants Capt. Smith, Capt. Williams and Dr. Ladd should not be dismissed for failure to serve the defendants pursuant to Rule 4(m). the court's show cause order. Plaintiff failed to respond to Rule 4(m) provides, in pertinent part, as follows: 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate time. Plaintiff bears the burden of showing good cause for failure to effect timely service.1 Plaintiff has not served these defendants within the time allowed under Rule 4(m), nor has he demonstrated good cause for failing to do so. Even without a showing of good cause, the court may exercise its discretion to extend the time for service. However, a review of the record does not support such an extension. RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's claims against defendants Capt. Smith, Capt. Williams and Dr. Ladd be dismissed for failure to serve the defendants pursuant to Rule 4(m), Fed.R.Civ.P. Baton Rouge, Louisiana, December 14, 2009. STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE To establish good cause, a plaintiff must demonstrate at least as much as would be required to show excusable neglect, and simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice. Lindsey v. United States Railroad Retirement, 101 F.3d 444, 446 (5th Cir. 1996). 2 1

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