Powell v. City of Jackson et al

Filing 7

ORDER adopting Report and Recommendations re 6 Report and Recommendations. of United States Magistrate Judge John C. Gargiulo. A Order of Dismissal, dismissing this case without prejudice, shall be entered this day. Signed by District Judge William H. Barbour, Jr on 9/16/15 (Lewis, Nijah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
THOMAS POWELL

PLAINTIFF

VS.

CIVIL ACTION NO. 3:14-cv-840-WHB-JCG

CITY OF JACKSON, et al.

DEFENDANTS
OPINION AND ORDER

This

cause

is

before

the

Court

on

the

Report

and

Recommendation (“R and R”) of United States Magistrate Judge John
C. Gargiulo.

After considering the R and R1 and the other

pleadings in this case, the Court finds it should be adopted in its
entirety.

I.

Discussion

Thomas Powell (“Powell”) alleges that the City of Jackson,
Mississippi, and several employees of the Jackson Police Department
violated

his

constitutional

rights.

Based

on

the

alleged

violations, Powell filed a lawsuit in this Court on October 29,
2014, seeking damages under 42 U.S.C. § 1983.

Summons for the

named defendants were issued by the Clerk of Court in December of
See [Docket Nos. 2 and 3].

2014.

In March of 2015, Powell was

granted additional time, i.e. up to and including April 3, 2015, in
which to serve process.
1

See Text Order entered on March 4, 2015.

Plaintiff was required to file an objection to the R and
R on or before August 31, 2015. No objection was filed.

Executed Summons were not returned or filed with the Clerk of
Court.
On August 3, 2015, United States Magistrate Judge John C.
Gargiulo entered an Order requiring Powell to show cause, on or
before August 13, 2015, as to the reason the case should not be
dismissed based on his failure to timely serve process as required
by Rule 4(m) of the Federal Rules of Civil Procedure.
Cause Order [Docket No. 5].

See Show

By that Order, Powell was expressly

warned: “If such good cause is not shown, or if no response is
received within such time, this case may be dismissed without
prejudice and without further notice to Plaintiff.” Id. at 2.
Powell did not respond to the Show Cause Order.

Based on Powell’s

failure to timely serve process and his failure to respond to the
Show Cause Order, Judge Gargiulo entered the R and R that is
presently

before

the

Court.

In

his

R

and

R,

Judge

Gargiulo

recommends that this case be dismissed pursuant to Rule 4(m), which
provides, in relevant part:
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
period.
After reviewing the R and R, to which no objection has been
filed, as well as the Docket in this case, the Court agrees with
Judge Gargiulo that the case should be dismissed based on Powell’s
2

failure to serve process within the time period prescribed by Rule
4(m), and the lack of any showing of good cause for that failure.
Accordingly,

the

Court

will

adopt

Judge

Gargiulo’s

R

and

R

recommending the dismissal of this case.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the August 14, 2015, Report and
Recommendation of United States Magistrate Judge John C. Gargiulo
[Docket No. 6], is hereby adopted as the ruling of this Court.
A Order of Dismissal, dismissing this case without prejudice,
shall be entered this day.
SO ORDERED this the 16th day of September, 2015.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

3