Bishop v. Miller et al

Filing 44

ORDER ADOPTING 38 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 3/31/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ADRIAN DESJUAN BISHOP,
Plaintiff,
vs.
MR. MILLER, et al.,
Defendants.

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No. CIV-14-560-C

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff filed the present action pursuant to 42 U.S.C. § 1983. Consistent with the
provisions of 28 U.S.C. § 636(b)(1)(B), this matter was referred to United States Magistrate
Judge Shon T. Erwin. Judge Erwin entered a Report and Recommendation (“R&R”) on
March 13, 2015, recommending dismissal without prejudice. Plaintiff has filed two
documents which the Court will construe as objections to the R&R.
In the R&R, Judge Erwin sets out the history of this case. In summary, Plaintiff filed
his action on May 30, 2014. Despite numerous extensions of time, warnings that failure to
obtain service would result in dismissal, and explicit instructions on the steps necessary to
obtain proper service, to date Plaintiff has not served any Defendant. Judge Erwin
recommends dismissal of the remaining Defendants pursuant to Fed. R. Civ. P. 4 for failure
to timely serve. In his Objection, Plaintiff argues he has done everything he knows to do.
However, as noted, the Court has repeatedly explained the deficiencies in Plaintiff’s attempts
at proper service. Since filing his Objection to the R&R, Plaintiff has submitted several
summonses and pro se forms. However, the individuals named as Defendants on those

documents are not named as Defendants in this action. Further, despite being repeatedly
advised of this shortcoming, Plaintiff has failed to provide the necessary copies of the
Complaint and Order for Special Report which must accompany any summons. Thus, the
Court finds that Plaintiff’s actions offer no evidence or argument demonstrating he has a plan
to obtain proper service on Defendants even if given additional time.
As Judge Erwin noted, this case has been pending nearly a year. Plaintiff has been
given multiple opportunities to obtain service with no success. This matter will be dismissed
without prejudice for failure to obtain service.
Accordingly, the Court adopts, in its entirety, the Report and Recommendation of the
Magistrate Judge (Dkt. No. 38), and for the reasons announced therein, DISMISSES this
action without prejudice. A separate judgment will issue.
IT IS SO ORDERED this 31st day of March, 2015.

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