Lang v. Yellowstone Co. Office of Public Assistance et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 16 in full. The Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Richard F. Cebull on 6/7/2012. Mailed to Lang. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
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BILLINGS DIVISION
KRISTEE RAE LANG,
Plaintiff,
VS.
ST. VINCENT HEALTHCARE,
et al.,
Defendant.
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ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
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On May 14, 2012, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends this Court
dismiss the Complaint.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. ยง 636(b)(1). In this matter, no
party filed objections to the May 14,2012 Findings and Recommendation.]
'Plaintiff did file a piece of paper that states "You Have the Right to:" and appears to list
the rights of someone seeking relief from an abusive situation. A telephone number for the
Abused Persons Outreach Center, Inc. is handwritten on the bottom of the filing. The Court is
unsure as to the relevance of this document and does not construe it as an objection to the
Findings and Recommendation. See Doc. 17.
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Failure to object to a magistrate judge's findings and recommendation waives all
objections to the findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.
1999). However, failure to object does not relieve this Court of its burden to
review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886
F.2d 1514, 1518 (9th Cir. 1989).
Based upon the letters from Lang, it is not clear whether Lang is seeking to
have her case dismissed. Regardless, she has been given an opportunity to
establish that she effected timely service of process in compliance with the Federal
Rules of Civil Procedure and she has not done so. See Fed.R.Civ.P. 4(c)(1)("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."). Rule 4(m) of the Federal Rules of Civil Procedure
provides:
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.
The Court has complied with Rule 4(m) by providing Lang notice of its intent to
recommend dismissal if she failed to provide proof of service. There is no proof
of any attempt by Lang to provide Defendants a copy of the Complaint in
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compliance with Rule 4. Lang apparently has some difficulties understanding her
obligations in prosecuting a federal lawsuit such as this. But she has made no
indication that she suffers from a condition that materially affects her ability to
represent herself. See Us. v. 30.64 Acres a/Land, More or Less, Situated in
Klickitat County, State a/Wash., 795 F.2d 796, 805 (9th Cir. 1986), Fed.R.Civ.P.
17(c), Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005).
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
Accordingly, IT IS HEREBY ORDERED that the Complaint is
DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to enter
a Judgment of dismissal and close this matter accordingly.
The Clerk OfCO~ notify the parties of the entry of this Order.
DATED the
L
day of June, 2012.
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