United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION, (Docs. 6 & 11)
Christina Reiss, District Judge United States District Court
matter came before the court for a review of the Magistrate
Judge's July 25, 2018 Report and Recommendation ("R
& R") (Doc. 11), in which he recommended that the
court dismiss Plaintiff Jacob Forcier's Complaint for
failure to properly serve Defendant Vermont Department of
Corrections. (Doc. 6.) Neither party has filed an objection
to the R & R, and the time period to do so has expired.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1); accord
Cullen, 194 F.3d at 405. A district judge, however, is
not required to review the factual or legal conclusions of
the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed.
Thomas v. Am, 474 U.S. 140, 150(1985).
September 8, 2016, Plaintiff, an inmate committed to
Defendant's custody and control, filed a Complaint in the
Vermont Superior Court, Civil Division, alleging Defendant
violated the rights of American Indians by denying access to
a sweat lodge in violation of the First Amendment to the
United States Constitution. The Vermont Superior Court
forwarded a copy of Plaintiff s Complaint to Defendant by
letter dated September 9, 2016. Defendant removed the action
to this court on October 6, 2016. In the notice of lawsuit
and request for waiver of service of summons, Plaintiff
certified that he sent a copy of his Complaint and the waiver
of service form to Defendant on August 25, 2016. (Doc. 6-1 at
1.) However, the waiver of service of summons form was not
signed and dated by Vermont Department of Corrections
Commissioner Lisa Menard or her representative.
September 15, 2016, the Prisoners' Rights Office sent
Plaintiff a letter stating it had reviewed his Complaint and
determined not to represent him or pay for assigned counsel.
It further informed Plaintiff that he was "responsible]
as a pro se plaintiff to effect service of the Summons and
Complaint upon the [D]efendant" and instructed him to
provide the court with proof of service once it was
completed. (Doc. 8 at 1.)
nineteen months later, on May 25, 2018, the Magistrate Judge
entered an Order recounting Plaintiffs obligation to serve
Defendant "within 90 days upon the removal of the case
to federal court." (Doc. 10.) The Magistrate Judge
observed that "[a]s this 90 day-period has passed in
this case, the [c]ourt ORDERS Plaintiff to show cause for
Plaintiffs failure to serve the [D]efendant" within
fourteen days of the Order or his Complaint may be dismissed.
Id. A review of the docket reveals no further
filings have been received from Plaintiff as of the date of
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish
the necessary copies to the person who makes service."
Fed.R.Civ.P. 4(c)(1). As the Magistrate Judge correctly
noted, pursuant to Fed.R.Civ.P. 4, Plaintiff was required to
serve Defendant with a copy of his Complaint "within 90
days after the complaint is filed[.]" Fed.R.Civ.P. 4(m).
Although where "the plaintiff is authorized to proceed
in forma pauperis under 28 U.S.C. § 1915 [, ] ... the
court may order that service be made by a United States
marshal or deputy marshal or by a person specially appointed
by the court[, ]" the facts of this case do not warrant
an extension of time for service. Fed.R.Civ.P. 4(c)(3).
Plaintiff has not prosecuted his lawsuit since filing his
Complaint on September 8, 2016. He has not requested
permission from this court to proceed in forma
pauperis or sought an extension of time for serving
Defendant. He also failed to respond to the court's May
25, 2018 Show Cause Order within fourteen days or thereafter
notwithstanding the Magistrate Judge's warning that
failure to respond would result in a dismissal of his
foregoing reasons, Plaintiffs Complaint must be dismissed for
lack of service and failure to prosecute. See Njasang Nji
v. Tryon, 308 F.R.D. 89, 91 (W.D.N.Y. 2015) (collecting
cases dismissing complaints where "a plaintiff has
failed to take any action on his or her case for a
substantial period of time" and "based on the
plaintiffs failure to effectuate service on named
defendants"). The dismissal shall be without prejudice
and Plaintiff is advised that a statute of limitations is
likely to apply to his claims requiring them to be filed
within the timeframe allotted or be barred.
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's R & R (Doc. 11) as the court's Order and
Opinion, and DISMISSES ...