Emilio v. Nebraska Department of Correctional Services et al

Filing 36

MEMORANDUM AND ORDER - Plaintiff's claims against Defendant L. Antholz are dismissed without prejudice. The court will enter a separate order progressing this case as to Plaintiff's claims against Robert Houston and Fred Britten. Plaintiff's Motions for Enlargement of Time (Filing No. 34 and Filing No. 35 ) are denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
ROBERT P. HOUSTON, Director,
FRED BRITTEN, Warden, and L.
ANTHOLZ, Officer,
Defendants.

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4:13CV3088

MEMORANDUM
AND ORDER

This matter is before the court on Pavon Emilio’s motions requesting additional
time in which to serve Defendant L. Antholz. (Filing No. 34 and Filing No. 35.) The
court allowed this matter to proceed to service on August 16, 2013. (Filing No. 16.)
The court extended the time in which Plaintiff had to serve Defendant L. Antholz on
December 9, 2013, January 22, 2014, and again on March 12, 2014. (Filing No. 18,
Filing No. 20, and Filing No. 28.) On June 12, 2014, the court ordered Plaintiff to
show cause why his claims against Antholz should not be dismissed for his failure to
serve him with process. (Filing No. 33.) Plaintiff’s response to the court’s order
indicates that he attempted to serve Antholz by certified mail, but the mail was
returned unclaimed on June 5, 2014. (Filing No. 35 at CM/ECF p. 2.)
Rule 4 of the Federal Rules of Civil Procedure requires the court to extend the
time for service “for an appropriate period” if a plaintiff shows good cause for the
failure to serve. Fed. R. Civ. P. 4(m). Here, more than 300 days have passed since
the court allowed this matter to proceed to service, and the court has granted
extensions of time on three occasions. To date, Plaintiff has not served Antholz,
despite having more than 300 days in which to do so. Accordingly, the court finds
that no further extensions of time will be given, and Plaintiff’s claims against Antholz
will be dismissed without prejudice.

IT IS THEREFORE ORDERED that:
1.
prejudice.

Plaintiff’s claims against Defendant L. Antholz are dismissed without

2.
The court will enter a separate order progressing this case as to
Plaintiff’s claims against Robert Houston and Fred Britten.
3.
Plaintiff’s Motions for Enlargement of Time (Filing No. 34 and Filing
No. 35) are denied.
DATED this 2nd day of July, 2014.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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