Opinion
01 Civ. 11622 (JSM)(KNF)
June 28, 2002
TO THE HONORABLE JOHN S. MARTIN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION I. INTRODUCTION
On December 20, 2001, Sharice Washington ("Washington" or "plaintiff"), proceeding pro se, filed this action against defendants Ware, Officer Russo and Captain Gladder, pursuant to 42 U.S.C. § 1983. A review of the docket sheet maintained by the Clerk of Court for this action shows that at the time the action was commenced, plaintiff was issued a summons to be served on the defendants. It does not appear, from a review of the docket sheet, that plaintiff has effected service of the summons and complaint upon the defendants. Furthermore, the time for doing so has elapsed.
II. BACKGROUND
Plaintiff alleges that, on September 16, 2001, while she was incarcerated at the Bedford Hills Correctional Facility, Officer Russo, upon observing plaintiff with a cigarette lighter, entered her cell with five officers, slammed her left arm down, twisted it and bent her wrist. Plaintiff also contends that Officer Russo threatened to break her arm if she did not remain silent and used invective language. Washington alleges that after the assault described above, she was not seen by medical personnel until the following day. Moreover, plaintiff maintains that no report of any kind was generated as a result of the incident. Plaintiff recalls that she was mistreated and was fed only bag-lunch, on the floor, for five days. Through this action, Washington seeks to recover for mental cruelty and the physical abuse she alleges she suffered as a result of the defendants' misconduct.
As has been noted earlier in this writing, on December 20, 2001, plaintiff filed a complaint with the Clerk of Court. After more than 120 days had elapsed, the Court reviewed the docket sheet maintained by the Clerk of Court and found that no proof had been submitted by plaintiff to establish that service of the summons and complaint had been effected. On May 13, 2002, the Court, sua sponte, enlarged the time for plaintiff to serve the summons and complaint. The Court directed plaintiff to serve the summons and complaint on the defendants by June 27, 2002. The Court informed the plaintiff that, if she failed to do so, or failed, on or before June 27, 2002, to request an extension of time in which to serve the summons and complaint, the Court would recommend that this action be dismissed. The Court also advised plaintiff that she might seek procedural assistance from the Pro Se Office for this judicial district, if she determined that it would be useful to do so. As of the date of this writing, a review of the docket sheet and the court file maintained by the Clerk of Court for this action indicates that plaintiff has not effected service of the summons and complaint in accordance with the requirements of the Federal Rules of Civil Procedure.
III. DISCUSSION
Rule 4(m) of the Federal Rules of Civil Procedure, in its most pertinent part, provides:
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.
"Among federal courts, there is virtual unanimity that dismissal is mandatory if a defendant is not served [with a summons and complaint] within th[e] time frame [set by Fed.R.Civ.P. 4(m),] unless the plaintiff can show 'good cause' or 'excusable neglect' for the delay."McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883, at *2 (S.D.N.Y. Aug. 10, 1999); see also Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990); Valentin v. Comm'r of Soc. Servs., No. 99 Civ. 40856, 2000 WL 1727710, at *1-2 (S.D.N.Y. Nov. 21, 2000); Ogbo v. New York State Dep't of Taxation Fin., No. 99 Civ. 9387, 2000 WL 1273840, at *2 (S.D.N.Y. Sept. 6, 2000).
Good cause or excusable neglect is typically found only in those exceptional circumstances where a plaintiff's failure to effect service of process in a timely manner has been occasioned by circumstances beyond plaintiff's control. See McKibben, 1999 WL 604883, at *3. Three factors are generally considered by courts in determining whether good cause or excusable neglect exists for a plaintiff's failure to meet the 120-day limit for service of process: (1) whether the delay in service was a result of mere inadvertence, or whether there has been a reasonable effort to effect service; (2) whether the defendant has been prejudiced; and (3) whether the plaintiff has moved under Fed.R.Civ.P. 6(b) for an enlargement of time in which to effect service. See Shuster v. Oppleman, No. 96 Civ. 1689, 1999 WL 9845, at *3 (S.D.N.Y. Jan. 11, 1999).
Although the Court has enlarged the time for plaintiff to effect service of the summons and complaint properly, there is no evidence before the Court that plaintiff has served a copy of the summons and complaint upon Ware, Officer Russo or Captain Gladder, pursuant to the relevant provisions of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 4(e) and (j). Therefore, the Court finds that plaintiff has failed to effect service of the summons and complaint upon the defendants timely and properly.
The Court also finds that plaintiff has not presented any competent evidence to the Court, by affidavit or otherwise, from which it could be concluded that good cause exists for plaintiff's failure to effect service of the summons and complaint upon the defendants timely and properly. Plaintiff's failure to effect service of the summons and complaint, after more than six months has elapsed since she commenced the instant action, is likely to prejudice the defendants in their ability to investigate plaintiff's claims and to mount a defense. Under these circumstances, dismissal of plaintiff's complaint, for failure to serve the defendants with the summons and complaint timely and properly, as required by Fed.R.Civ.P. 4, is warranted.
IV. RECOMMENDATION
For the reasons set forth above, plaintiff's complaint should be dismissed because of her failure to comply with the relevant provisions of Fed.R.Civ.P. 4.
V. FILING 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 Court, with courtesy copies delivered to the chambers of the Honorable John S. Martin, 500 Pearl Street, Room 1620, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Martin. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).