Barnes v. Isavigan

Filing 7

ORDER signed by Judge Lynn Adelman on 3/14/12 dismissing case without prejudice for failure to complete service. Further ordering that plaintiffs motion to amend the complaint 4 is denied as moot. (cc: all counsel)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JAMEL BARNES,
Plaintiff,
v.

Case No. 11-C-0435

ROM ISAVIGAN,
Defendant.

DECISION AND ORDER
Plaintiff filed this case on May 5, 2011. Pursuant to Fed. R. Civ. P. 4(m), plaintiff
had 120 days from filing within which to complete service of the summons and complaint
upon the defendant. On February 13, 2012, I noticed that plaintiff had not filed proof of
service on the defendant, and I warned him that unless proof of service was filed within 21
days I would dismiss the case without prejudice. Plaintiff has not filed proof of service.
Instead, he has indicated that he did not even begin to attempt to serve the defendants
until after I issued my warning about dismissing this case without prejudice unless proof
of service was filed. By that time, however, the 120 days for completing service provided
by Rule 4(m) had already expired, and I did not extend the time for completing service of
process.
On March 9, 2010, I issued an order directing the plaintiff to show cause why this
case should not be dismissed without prejudice for failing to complete service within 120
days. In his response to that order, plaintiff does not provide any reason for failing to
complete service within 120 days. Nor does he ask that I extend the time for completing

service or provide any reason why I should grant him an extension.1 Although plaintiff
notes that he recently filed a motion to amend the complaint to reflect the correct identities
of the defendants, this does not explain why plaintiff did not make any effort to serve the
defendants before the 120 days provided by Rule 4(m) expired. Therefore, I conclude that
this case should be dismissed without prejudice for failure to complete service within the
prescribed time.2
THEREFORE IT IS ORDERED that this case is DISMISSED WITHOUT
PREJUDICE for failure to complete service.
IT IS FURTHER ORDERED that plaintiff’s motion to amend the complaint is
DENIED as MOOT.
Dated at Milwaukee, Wisconsin this 14th day of March 2012.

s/_________________________________
LYNN ADELMAN
District Judge

1

In his response, plaintiff states that the court “recently ordered [plaintiff] to initiate
service on the defendants.” That statement is inaccurate. I did not order plaintiff to “initiate
service” on the defendants; I ordered him to prove that he had already completed service
on the defendant.
2

It appears that a dismissal without prejudice will not prevent plaintiff from filing a
fresh lawsuit, should he choose to do so. He complains about a civil-rights violation that
occurred in February 2009, and the statute of limitations governing § 1983 claims in
Wisconsin is six years. See Malone v. Corrections Corp. of Am., 553 F.3d 540, 541 (7th
Cir. 2009).
2