Fox v. The State of Mississippi et al

Filing 11

ORDER regarding service of process. Signed by Magistrate Judge Michael T. Parker on October 24, 2011. (KM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

CARL FOX, III

PLAINTIFF

V.

CIVIL ACTION NO. 3:11cv377-CWR-MTP

THE STATE OF MISSISSIPPI, ET AL.

DEFENDANTS

ORDER REGARDING SERVICE OF PROCESS
This matter is before the court sua sponte for case management purposes. Plaintiff filed
this civil rights action on June 23, 2011. On September 8, 2011, the court entered an Order [6]
denying Plaintiff’s Motion [2] for leave to proceed in forma pauperis. The court received
Plaintiff’s filing fee on September 22, 2011. See Docket Entry dated 9/22/11.
On October 20, 2011, summonses were issued to the Defendants. See Summonses [10].
Plaintiff is reminded that it is his responsibility to properly serve Defendants with process under
Fed. R. Civ. P. 4 within 120 days after the complaint is filed. See Fed. R. Civ. P. 4(c)
(providing that the “plaintiff is responsible for having the summons and complaint served within
the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes
service”); see also Fed. R. Civ. P. 4(m) (providing that if the plaintiff fails to serve the
defendant with the complaint within 120 days after the complaint is filed, the court “must
dismiss the action without prejudice against that defendant . . .”). Because Plaintiff is not
proceeding in forma pauperis pursuant to 28 U.S.C. § 1915, the court and the U.S. Marshal’s
office have no obligation to assist Plaintiff with the service of process. See Fed. R. Civ. P. 4(c);
L.U.Civ.R. 4(b) (“The United States Marshal does not serve process in civil actions except on
behalf of the federal government, in actions proceeding in forma pauperis, on writs of seizure
and executions of judgments, and when otherwise ordered by a federal court.”); see also Whiting

v. Alvarado, No. 2:03cv53, 2004 WL 527793, at *1-2 (N.D. Tex. Mar. 17, 2004) (denying
plaintiff’s motion for service of process by U.S. Marshal where plaintiff was not proceeding in
forma pauperis). Accordingly,
IT IS, THEREFORE, ORDERED:
1.

That Plaintiff must properly serve the Defendants with the summons and
complaint by January 19, 2012,1 and must file the proof of service of the
summons and complaint by the server’s affidavit pursuant to Rule 4(l).

2.

That Plaintiff’s failure to properly serve the Defendants in accordance with Rule 4
may result in the dismissal of any unserved Defendant.

3.

That it is the Plaintiff's responsibility to prosecute this case. Failure to advise this
court of a change of address or failure to comply with any order of this court will
be deemed as a purposeful delay and contumacious act by the Plaintiff and may
result in the dismissal of this case.

SO ORDERED this the 24th day of October, 2011.
s/ Michael T. Parker
United States Magistrate Judge

1

Although Plaintiff’s Complaint was filed on June 23, 2011, his Motion for Leave to
Proceed In Forma Pauperis [2] was denied on September 8, 2011, and Plaintiff did not pay his
filing fee until September 22, 2011. Weighing all doubts in Plaintiff’s favor, the 120-day time
limitation began to run on September 22, 2011, the date his filing fee was paid. See Shabazz v.
Franklin, 380 F. Supp. 2d 793, 799 (N.D. Tex. 2005); Ellis v. Principi, 223 F.R.D. 446, 447-48
(S.D. Miss. 2004).
2