The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
This matter comes before the Court pursuant to Defendants'
Motions for Partial Dismissal under Rule 12(b)(2) of the Federal
Rules of Civil Procedure, and in Limine under Rules 402, 403 and
801 of the Federal Rules of Evidence [docket # 104].
Plaintiff filed this action on October 18, 2001, naming as
Defendants the Department of Corrections, Jack Terhune, Susan
Maurer, Roy Hendricks, Donald Mee, Debbie Faunce, Alfaro Ortiz,
Sgt. Gregory Hall, SCO Andrew Bonner, SCO Steven Brzdek, SCO
Joseph Fry, SCO Antonio Toplyn, SCO Alonzo Wade, Hearing Officer
Jack Ozvart, SCO Williams, SCO Gredo, SCO Mercer, SCO Pagon, Dr.
Sterling, Sgt. John Does #1-4, SCO John Does #1-4, Dr. John Does
On May 1, 2002, the Honorable Mary L. Cooper, U.S.D.J. issued
and Order and Opinion pursuant to 28 U.S.C. § 1915 permitting
Plaintiff to proceed in forma pauperis. Judge Cooper further ordered Plaintiff's Eighth Amendment excessive force
claims against SCO Fry, Wade and Toplyn, retaliation claim
against Defendants Terhune, Maurer, Hendricks, Faunce, Sgt. Hall,
SCO Wade, SCO Fry, SCO Bonner, SCO Toplyn, right of association
claim against Defendants Terhune, Maurer, Ortiz and Hendricks,
and 42 U.S.C. § 1985(2) deterrence claims against SCO Fry, SCO
Wade, SCO Toplyn, to proceed.
Judge Cooper dismissed Plaintiff's medical care, conditions of
confinement, access to the courts, false disciplinary charge, due
process violations against Defendant Ozvart, depravation of
property, 42 U.S.C. § 1985(3) conspiracy and state law claims.
Judge Cooper further ordered that plaintiff could file an Amended
Complaint. Defendants Terhune and Maurer were served on June 25,
2002, Defendants Hendricks, Mee, Fry, Hall, Bonner, Toplyn and
Wade were served on June 27, 2002. Defendant Faunce was served on
July 12, 2002. Defendants Brzdek and Sterling were served on
August 23, 2002 and Defendant Ortiz was served on September 16,
2002. Named Defendants Williams, Gredo, Mercer, and Ozvart were
On July 22, 2002, Plaintiff filed an Amended Complaint naming
an additional Defendant, Pagon. Named Defendant Pagon was never
On January 6, 2005, Plaintiff filed a Second Amended Complaint.
On December 8, 2004, Defendants filed the instant Motions for
Partial Dismissal, and in limine. Having received no opposition
to these motions from Plaintiff, the Court wrote a letter to the
Plaintiff on January 5, 2005, adjourning the return date to
February 22, 2005, and allowing Plaintiff to respond by February
8, 2005. The letter stated that if Plaintiff chose not to submit
an opposition, the motion would be deemed unopposed and disposed
of accordingly. On or about February 2, 2005, the Court received
a letter on behalf of Plaintiff dated January 22, 2005, in which Plaintiff explained that he might miss the Court's
deadline, but that he would try to have the opposition submitted
on time. To date, the Court has not received any further
communication or filings from Plaintiff with regard to this
I. Dismissal of Certain Defendants:
Defendants Williams, Gredo, Mercer, Ozvart, and Pagon assert
that they should be dismissed from this litigation because they
were never served in accordance with Federal Rule of Civil
The Federal Rules of Civil Procedure state that "[i]f 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 action without prejudice as to that defendant."
Judge Cooper's Order permitting Plaintiff to proceed in forma
pauperis was issued on May 1, 2002, well over three years ago.
Plaintiff's amended complaint naming Defendant Pagon was filed on
July 22, 2002, more than three years ago as well. Since that
time, Plaintiff properly served several Defendants, but he has
never affected proper service upon Defendants Williams, Gredo,
Mercer, Ozvart, and Pagon. Plaintiff also filed an amended
complaint which once again named Defendant Pagon on January 6,
2005. However, more than 120 days have passed since the filing of
this amended complaint as well with no service affected upon
In light of the fact that Plaintiff has not served Defendants
Williams, Gredo, Mercer, Ozvart, and Pagon within 120 days after
the filing of his complaint or within 120 days of Judge Cooper's Order permitting Plaintiff to proceed in forma pauperis,
these Defendants ...