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CRUZ v. HUGO SPINDOLA-FRANCO

United States District Court, Southern District of New York


August 20, 2003

LUIS DE LA CRUZ, PLAINTIFF, AGAINST HUGO SPINDOLA-FRANCO, RADIOLOGIST, M.D., AND DR. O FLO, ATTENDING PHYSICIAN AT BELLEVUE HOSPITAL, DEFENDANT

The opinion of the court was delivered by: Richard Casey, District Judge

OPINION AND ORDER

Plaintiff Luis de la Cruz ("Plaintiff"), proceeding pro se, brought this action against Defendants Hugo Spindola-Franco, Radiologist, and Dr. Flo, the attending physician at Bellevue Hospital. The case was referred to Magistrate Judge Francis for a Report and Recommendation ("Report"). The Magistrate Judge recommended dismissal of the complaint in a Report dated July 19, 1999 ("First Report") as well as in a second Report dated February 20, 2002 ("Second Report"), based on Plaintiff's failure to effect timely service. The Court accepts and adopts both Reports with the following additions.

The complaint was filed in April 1998. In an order dated April 9, 1999, the Magistrate Judge issued an order directing Plaintiff to file proofs of service by May 31, 1999. However, Plaintiff failed to do so. On June 28, 1999, the Magistrate Judge directed the Plaintiff to write to the court explaining why the complaint should not be dismissed for failure to effect service. When Plaintiff failed to do so, Magistrate Judge Francis issued the First Report recommending dismissal. Two weeks later, Plaintiff sent objections to the First Report explaining that he had never received the Magistrate Judge's June 28, 1999 letter. On February 13, 2002, the case was referred back to the Magistrate Judge to consider Plaintiff's objections. The Magistrate Judge issued the Second Report again recommending dismissal based on Plaintiff's failure to serve the summons after being directed to do so by May 31, 1999 in the April 9, 1999 order. Plaintiff never submitted any objections to the Second Report.

The Court also notes that in a letter dated October 27, 1998, Judge Sotomayor directed Plaintiff to communicate with the Court by no later than December 21, 1998. Judge Sotomayor ordered Plaintiff to provide good cause as to why service of the summons and complaint had not been not effected within the 120 days prescribed by Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff failed to do so. Indeed, despite Plaintiff's attempts to explain his failure to write to the Court or respond to requests in a timely fashion, he has never effected service nor provided any explanation for his failure to do so.

A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court, having reviewed the file in this matter and satisfied that there is no clear error on the face of the record, accepts and adopts the Report and Recommendation of Magistrate Judge Francis in its entirety with the above additions.

Thus, the complaint is denied without prejudice and the Clerk of the Court is directed to close the files and remove the case from the active docket.

SO ORDERED: [ Page 1]

20030820

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