Asare v. Sessions

Filing 9

REPORT AND RECOMMENDATIONS in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 11/7/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/24/17. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ANGELYNA ASARE, Plaintiff, v. Civil Action 2:17-cv-405 Judge Michael H. Watson Magistrate Judge Jolson JEFF B. SESSIONS, Defendant. REPORT AND RECOMMENDATION On August 29, 2017, the Court issued an Order noting that Plaintiff had yet to effect service on Defendant. (Doc. 4). Consequently, the Court directed Plaintiff to show good cause within fourteen days why this action should not be dismissed and why an extension of time to effect service should be allowed. (Id. (citing Fed. R. Civ. P. 4(m)). Plaintiff responded on September 11, 2017, stating that she “erroneously . . . belie[ved] that Defendant would be served by the Clerk of Courts,” but would “work diligently to ensure that all necessary Court documents and services are completed and filed as quickly as possible.” (Doc. 5 at 1–2). In a September 13, 2017 Order, the Court construed Plaintiff’s response as a motion for extension of time to effect service, and directed Plaintiff to effect service by October 4, 2017. (Doc. 6). At that time, the Court informed Plaintiff that, although she is proceeding pro se, she is required nevertheless to follow the Federal Rules of Civil Procedure. (Id. at 1). The Court also directed Plaintiff to Fed. R. Civ. P. 4(i), which governs service of process in cases where the United States is named as a defendant. (Id.). Finally, the Court warned that if Plaintiff failed to properly effect service, dismissal would be recommended. (Id. at 2). On September 25, 2017, in an apparent attempt to comply with the Court’s Order, Plaintiff filed a “Proof of service by Mail.” (Doc. 7). In that filing, Plaintiff stated that she “served the documents by enclosing them in an envelope and depositing the sealed envelope with the United States Postal Service Priority Mail with [a] tracking number [] [and] postage fully prepaid.” (Id.). On October 5, 2017, the Court issued yet another Order explaining that attempting service via priority mail did not comply with the Federal Rules of Civil Procedure. (Doc. 8 at 1). However, because Plaintiff appeared to be diligently attempting to effect service, the Court granted Plaintiff an additional fourteen day extension. (Id. at 1–2). Plaintiff was once again warned that her failure to properly effect service in that time would result in a recommendation of dismissal. (Id. at 2). More than fourteen days have passed since the Court’s October 5, 2017 Order, and Plaintiff has failed to perfect service on Defendant. Based on the foregoing, the Court RECOMMENDS that this action be dismissed. Procedure on Objections to Report and Recommendation 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). IT IS SO ORDERED. Date: October 24, 2017 /s/ Kimberly A. Jolson KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

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