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CHISLUM v. DEPARTMENT OF CORRECTIONS

August 2, 2005.

CLARENCE CHISLUM Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, et al., Defendants.



The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge

OPINION

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].

BACKGROUND:

  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 #1-4.

  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 never served.

  On July 22, 2002, Plaintiff filed an Amended Complaint naming an additional Defendant, Pagon. Named Defendant Pagon was never served.

  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 motion.

  DISCUSSION:
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 Procedure 4(m).

  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." Fed.R.Civ.P. 4(m).

  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 these Defendants.

  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 ...


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