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Herring v. City of Syracuse

October 8, 2010

WILLIAM HERRING, PLAINTIFF,
v.
CITY OF SYRACUSE; DZENAN SELIMOVIC, POLICE OFFICER, SYRACUSE POLICE DEPARTMENT; AND JEFFREY BEAUCHINE, POLICE OFFICER, SYRACUSE POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

This is a pro se civil rights action filed by William Herring ("Plaintiff") against the City of Syracuse and two of its police officers ("Defendants"). For the reasons set forth below, Plaintiff's Complaint is dismissed without prejudice for failure to serve pursuant to Fed. R. Civ. P. 4(m), and in the alternative for failing to prosecute and/or obey an Order of the Court pursuant to Fed. R. Civ. P. 41(b).

I. RELEVANT BACKGROUND

Plaintiff filed his Complaint in this action on October 20, 2009. (Dkt. No. 2.) On October 20, 2009, he was sent a personal copy of the Northern District's Pro Se Handbook.

(Dkt. No. 3.)*fn1 The Pro Se Handbook informed Plaintiff that, inter alia, "[i]f one of your defendants cannot be served, you will not be able to prevail in your lawsuit against that person. It is your responsibility, and not the duty of the Court, to ascertain the . . . addresses of those individuals whom you believe caused you to be injured." Northern District of New York's Pro Se Handbook, at 11 http://www.nynd.uscourts.gov/documents/Pro_Se_Handbook_2009_000.pdf [last visited Oct. 8, 2010]. It also informed Plaintiff that, inter alia, "[i]n order to begin a lawsuit in Federal Court, a plaintiff must submit to the Clerk of the Court the following documents: . . . [a] summons for each defendant[;] [and] . . . one completed USM-285 form for each defendant." Id. at 16-17.

On November 2, 2009, United States Magistrate Judge George H. Lowe, of this District issued an Order that, inter alia, granted Plaintiff's motion to proceed in forma pauperis and directed Plaintiff to "comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action." (Dkt. No. 6, at 2.) On April 5, 2010, Plaintiff was mailed a notice advising him that, for service of his summonses and Complaint to be accomplished by the U.S. Marshals Service, Plaintiff would have to complete a new U.S. Marshals form USM 285. (Dkt. No. 8, at 4.) The notice also advised Plaintiff that "FAILURE TO COMPLETE SERVICE ON A DEFENDANT MAY RESULT IN A DISMISSAL OF YOUR COMPLAINT AGAINST THAT DEFENDANT." (Id. [capitalization in original].)

On May 24, 2010, Plaintiff sent a letter to the Court requesting three blank USM 285 forms, as well as a personal copy of the Local Rules of Practice for this Court. (Dkt. No. 10.)*fn2

On May 26, 2010, the Clerk's Office mailed those forms to Plaintiff, as well as three blank summonses. (Docket Entry for 05/26/2010.) The Local Rules reminded Plaintiff that, inter alia, "[w]henever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed." N.D.N.Y. L.R. 41.2(a).

However, as of July 14, 2010, Plaintiff still had not submitted the completed summonses and USM 285 forms. As a result, on that date, the Court issued, and mailed to Plaintiff, a Text Order again advising him that, "if he does not submit new proposed summons and USM-285 forms for each defendant for service by the U.S. Marshal Service and provide his current address to the Clerk's office by 8/2/10, this case will be dismissed for failure to prosecute." (Text Order for 07/14/2010.) Moreover, on July 20, 2010, the Court resent that Text Order--along with three blank summonses and three blank USM 285 forms--to what Plaintiff had orally advised the Clerk's office was his new address. (Docket Entry for 07/20/2010.)

As of the date of this Decision and Order, Plaintiff has failed to submit the completed summonses and USM 285 forms.

II. GOVERNING LEGAL STANDARDS

Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

If a defendant is not served within 120 days after the complaint is filed, the court--on motion or its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...


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