PIZZARO v. WALL

2004 | Cited 0 times | D. Rhode Island | April 5, 2004

Report and Recommendation

On September 18, 2003, Robert Pizzaro, an inmate incarcerated at theAdult Correctional Institutions, filed a Complaint pursuant to42 U.S.C. § 1983 alleging a violation of his Eighth and FourteenthAmendment rights. Having not effected proper service on the nameddefendants, plaintiff was ordered to show cause why this case should notbe dismissed. Plaintiff filed a Response to the Show Cause Order. TheResponse has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) fora report and recommendation. For the reasons that follow, I find that theplaintiff has failed to show cause why this case should not be dismissed.

Discussion

On September 18, 2003, Robert Pizzaro filed a Complaint naming asdefendants: AT. Wall, Director of the Rhode Island Department ofCorrections ("DOC"); Walt Whitman, Warden, Maximum Security; JamesVierra, Deputy Warden, Maximum Security; Jake Gadsen, AssistantDirector; Robert Catlow, Chief, Special Investigations Unit; Lynda Rose,Investigator; Lieutenant Orden; Counselor Vickie; and Officer Buster.Plaintiff never properly served any of the defendants. Despite hisfailure to serve the named defendants, plaintiff filed a motion for default, which was granted by the Clerk ofCourt. Thereafter, plaintiff attempted to compel the relief sought in theComplaint. In the meantime, the named defendants learned of the defaultand promptly filed a motion to set it aside. The motion to set aside thedefault was granted.

The Court then ordered the plaintiff to show cause, in writing, why hisComplaint should not be dismissed for a lack of prosecution due to hisfailure to effect timely service, in compliance with Fed.R.Civ.P. 4(m).Rule 4(m) provides in relevant part: [i]f service of the summons and the complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend that time for service for an appropriate period.Fed.R.Civ.P. 4(m).

In his Response to the Show Cause Order, plaintiff indicates that thedefendants have unlimited resources and he is "handicapped by hisincarceration." See Plaintiff's Response at 2. Plaintiff claims that hispro se status should excuse his failure to serve the defendants. Whilethis Court adheres to the Supreme Court's admonition that pro selitigants should be afforded an extra degree of solicitude, see e.gHaines v. Kerner, 404 U.S. 519 (1972), plaintiff's "[p]ro se status . .. is not automatically enough to constitute good cause for purposes ofRule 4(m)." See Mclsaac v. Ford, 193 F. Supp.2d 382 (D. Mass. 2002)(quoting Wright & Miller, Federal Practice and Procedure: Civil 3d §1137, at 342 (2002)). Indeed, the record demonstrates that this Courtsent the plaintiff detailed instructions on how to effect service. SeeCourt File, Letter from the Clerk of Court, September 19, 2003. Despitethese detailed instructions, plaintiff failed to follow them and properly serve the defendants.

Plaintiff asserts in his Response that he attempted to effect serviceby mailing to AT. Wall, the Director of the DOC, copies of the Complaintand the necessary waiver documents. However, in his Affidavit filed onDecember 5, 2003 in support of his motion for default, plaintiffindicated that he mailed copies of the Complaint and necessary waiverdocuments to Michael Grant, Esq., legal counsel at the Department ofCorrections. Whichever is the accurate, neither constitutes properservice of the named defendants. Moreover, after the plaintiff did notreceive the return of service receipts from any of the defendants,plaintiff made no effort to ensure that each named defendant was properlyserved. Rather, he rushed to the courthouse and filed a motion for adefault, without filing the requisite return of service forms.

Other than blaming the defendants and his incarceration, plaintifffails to offer any credible reason for his failure to properly effectservice. When presented with no good reason for the lack of service, thisCourt cannot find cause to stave off dismissal. It is the plaintiff'sresponsibility to effect proper service. See Fed.R.Civ.P. 4(c)(1).Accordingly, I find that the plaintiff has failed to show cause why thiscase should not be dismissed, without prejudice.

Conclusion

For the reasons stated above, I find that the plaintiff has failed toshow cause why this case should not be dismissed. Any objection to thisReport and Recommendation must be specific and must be filed with theClerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); LocalRule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court andthe right to appeal the district court's decision. United States v.Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)(per curiam); Park MotorMart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

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