Blankenship v. Commissioner of Social Security

Filing 8

REPORT AND RECOMMENDATION that 5 Complaint be dismissed without prejudice - Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/6/2015. (agm1) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Donald L. Blankenship,
Plaintiff,
v.

:
:
:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-1227

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
The complaint in this action was filed on August 14, 2014.
There is no record that service has been made upon the
defendant (that is, no record that the Commissioner was ever sent
a copy of the summons and complaint - apparently because
Plaintiff did not provide service copies of the summons and
complaint to the Marshal, even though, as the docket indicates,
the Clerk sent him a letter on August 14, 2014, telling him he
needed to do so).

On January 13, 2015, the Court pointed out

this problem to Plaintiff, and directed him to show cause within
fourteen days why the case should not be dismissed under
Fed.R.Civ.P. 4(m) and to move for an extension of time to make
service.

There has been no response to that order.

Given that service has never been made, and that Plaintiff
has not asked for an extension of time or shown good cause why
such an extension should be granted, Rule 4(m) says that the
Court “must dismiss the action without prejudice ....”
Consequently, the Court recommends such dismissal unless
Plaintiff, in any objection to this Report and Recommendation,
shows good cause why an extension of time to make service should

be granted.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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