Norales v. N.Y.S. Dept. of Correctional Serv.

Full title: MIRIAM NORALES, Plaintiff, v. N.Y.S. DEPT. OF CORRECTIONAL SERV., et al.…

Court: United States District Court, S.D. New York

Date published: Sep 6, 2002

02 Civ. 3533 (RMB) (AJP) (S.D.N.Y. Sep. 6, 2002)

Opinion

02 Civ. 3533 (RMB) (AJP)

September 6, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, Magistrate Judge

To the Honorable Richard M. Berman, United States District Judge:

Plaintiff Miriam Norales' pro se complaint in this action was filed as of May 8, 2002.

Rule 4(m) of the Federal Rules of Civil Procedure provides:

Time Limit for Service. If service of the summons and 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 the time for service for an appropriate period. . . .

By letter dated May 20, 2002, I advised plaintiff that if the complaint was not properly served under Rule 4(m), that is, by September 5, 2002, I would recommend that the action be dismissed. I also directed plaintiff to provide my chambers with proof of service when made. Plaintiff Norales signed for the certified copy of my May 20, 2002 letter.

Plaintiff Norales has not provided my chambers with proof of service on defendant, and a review of the Court's docket sheet for this action discloses that there is no affidavit of service on file with the Clerk's Office. Further, the Marshal's Office has informed my chambers that plaintiff never submitted anything to them to effect service of process.

More than 120 days having passed from the filing of the complaint, and the Court having advised plaintiff of her obligations under Fed.R.Civ.P. 4(m), and there being no indication that plaintiff has had the complaint served on defendant, I recommend that the Court dismiss plaintiff's complaint without prejudice for failure to timely serve it pursuant to Fed.R.Civ.P. 4(m). See, e.g., Brown v. Rapisarda, 01 Civ. 1217, 2002 WL 1402339 at *1 (S.D.N.Y. July 1, 2002) (Peck, M.J.); Hill v. Odland, 00 Civ. 6125, 2002 WL 426188 at *1 (S.D.N.Y. Mar. 19, 2002) (Peck, M.J.); Sanchez v. Hudson Assoc., 01 Civ. 1647, 2001 WL 830581 at *1 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Reyes v. North Shore-Long Island Jewish Health Sys., 00 Civ. 8968, 2001 WL 395166 at *1 (S.D.N.Y. Apr. 16, 2001) (Peck, M.J.); Reckler v. Copper Dev. Ass'n, Inc., 00 Civ. 7007, 2001 WL 123727 at *1 (S.D.N.Y. Feb. 14, 2001) (Peck, M.J.).¹

1 See also, e.g., Reyes v. McElroy, 00 Civ. 3311, 2000 WL 1280996 at *1 (S.D.N.Y. Sept. 12, 2000) (Peck, M.J.); Williams v. Elzy, 99 Civ. 12084, 2000 WL 748150 at *1 (S.D.N.Y. June 9, 2000) (Peck, M.J.); Sanchez v. Bushrod, 98 Civ. 3830, 1999 WL 1565180 at *1 (S.D.N.Y. Jan. 21, 1999) (Peck, M.J.), report rec. adopted, 2002 WL 230831 (S.D.N.Y. Feb. 15, 2002); Duran v. New York City Police Dep't, 95 Civ. 4484, 1995 WL 791968 at *1 (S.D.N.Y. Nov. 30, 1995) (Cedarbaum, D.J. Peck, M.J.); Kinlow v. Bock, 95 Civ. 3213, 1995 WL 791969 at *1 (S.D.N.Y. Oct. 27, 1995) (Preska, D.J. Peck, M.J.).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).