Beaman v. Goodwin

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 10 Report and Recommendations: No objections having been filed, and the Court having determined there is no clear error in the Report and Recommendation, the Court adopts Magistrate Judge Gorenstein 9;s recommendation. The case is dismissed on the grounds that it has been abandoned, without prejudice. The Clerk of Court is directed to close the case. Pursuant to 28 U.S.C. 1915(a), I find that any appeal from this order would not be taken in good faith. (Signed by Judge Paul A. Crotty on 9/30/2013) Copies Mailed By Chambers. (rsh)

Case 1:12-cv-05680-PAC-GWG Document 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
SHELTON BEAMAN,

Filed 06/06/13 Page 1 of 3
No objections having been filed, and the Court having
determined there is no clear error in the Report and
Recommendation, the Court adopts Magistrate Judge
Gorenstein’s recommendation. The case is dismissed on the
grounds that is has been abandoned, without prejudice. The
Clerk of Court is directed to close the case. Pursuant to 28
U.S.C 1915(a), I find that any appeal from this order would
not be taken in good faith. So Ordered. Copies Mailed By
Chambers.

09/30/13

:
Paul A. Crotty, U.S.D.J

Plaintiff,
-v.-

: REPORT AND RECOMMENDATION
:

L. GOODWIN,

:
Defendant.

:

12 Civ. 5680 (PAC) (GWG)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 30, 2013

---------------------------------------------------------------x
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
The complaint in this matter was filed on July 20, 2012. On January 3, 2013, Judge Paul
A. Crotty ordered that a summons be issued and that plaintiff effectuate service within 120 days
of the issuance of the summons. Order of Service, filed Jan. 3, 2013 (Docket # 7). Judge Crotty
warned that the case may be dismissed if plaintiff either failed to served the defendant or failed
to request an extension of time to do so. Id. On January 18, 2013, the Clerk of Court sent
plaintiff a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) and
instructions for completing the form. See Docket Entry, dated Jan. 18, 2013. As of April 5,
2013, plaintiff had not returned this form to the Court in accordance with the instructions.
Accordingly, the undersigned issued an Order on that date informing plaintiff that by May 6,
2013, he must either send to the Clerk a complete USM-285 form or send a letter requesting that
a summons be sent to him in order to arrange for service on his own. Order, filed Apr. 5, 2013
(Docket # 9), at 1. If plaintiff complied with this deadline, the Court would extend the time for
service to 120 days from receipt of the form or letter. Id. at 1–2. This Order specifically
informed plaintiff that his case could be dismissed if he failed to comply with these directives.

Case 1:12-cv-05680-PAC-GWG Document 10

Filed 06/06/13 Page 2 of 3

Id. at 2.
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 120-day period permitted under Rule 4(m) has expired. To date, there has been no proof of
service filed with respect to the defendant in this matter. Nor has there been an application for
an extension of time that shows good cause for such failure. The Clerk reports that plaintiff has
sent neither a completed USM-285 form nor a letter requesting a summons be sent to him to
arrange for service on his own. Similarly, the U.S. Marshals Service has informed the Court that
it has no record of plaintiff requesting that it effectuate service.
For these reasons, and because this is not a case in which the Court should exercise its
discretion to grant an extension in the absence of good cause, see Zapata v. City of N.Y., 502
F.3d 192 (2d Cir. 2007), cert. denied, 552 U.S. 1243 (2008), this matter should be dismissed
without prejudice pursuant to Rule 4(m).
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days including weekends and holidays from service of
this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a),
(b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the
Court, with copies sent to the Hon. Paul A. Crotty, and to the undersigned, at 500 Pearl Street,
New York, New York 10007. Any request for an extension of time to file objections must be
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Case 1:12-cv-05680-PAC-GWG Document 10

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directed to Judge Crotty. If a party fails to file timely objections, that party will not be permitted
to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474
U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd &
Carwile, P.e., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED.

Dated: June 6, 2013
New York, New York

Copy to:
Shelton Beaman
10-A-0483
Bare Hill Correctional Facility
Caller Box 20
181 Brand Road
Malone, NY 12953

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