United States District Court, D. Minnesota
Armande L. Milhouse, Plaintiff,
Warden Nickerenz; Lt. Johnson; Lt. Wilson; Ofc. Holm; Federal Prison Camp Duluth; and Federal Bureau of Prisons, Defendants.
REPORT AND RECOMMENDATION
BOWBEER United States Magistrate Judge.
Armande L. Milhouse filed this action on May 20, 2015.
Because Milhouse is a federal prisoner seeking redress from
governmental employees, his complaint was subject to
screening under 28 U.S.C. § 1915A. This Court conducted
the necessary screening and allowed the matter to proceed,
although it noted that because Milhouse was not proceeding
in forma pauperis, he would personally be
responsible for effecting service of process within 120 days
of the date the complaint was filed. (Order at 1 [Doc. No. 2]
(citing Fed.R.Civ.P. 4(m)).) Milhouse was again reminded by
this Court in an Order dated June 16, 2015, of his
responsibility to effect service of process within 120 days
of the date the complaint was filed. (Order at 1 [Doc. No.
than 120 passed without an answer or other responsive
pleading from the defendants. In addition, it appeared from
the documents filed by Milhouse with the Court that service
of process had not been effected in accordance with Rule 4(i)
of the Federal Rules of Civil Procedure. (See
Order at 2-3, Nov. 10, 2015 [Doc. No. 11].) Accordingly, on
September 17, 2015, this Court directed Milhouse to file
proof of legally sufficient service of the summons and
complaint within 10 days, failing which this matter would be
recommended for dismissal without prejudice for failure to
prosecute. (Order at 2 [Doc. No. 10].)
failed to respond to the September 17 Order. However, because
the Court learned that Milhouse had recently been transferred
to a different federal facility, the Court did not recommend
dismissal of this action for failure to prosecute at that
time, as Milhouse may not have been aware of the Court's
previous orders. Instead, in an Order issued on November 10,
2015, the Court explained the procedural history of this case
in depth and allowed Milhouse an additional opportunity to
submit proof that he had effected service of process in a
manner consistent with Federal Rule of Civil Procedure 4(i)
by no later than December 10, 2015. (See Order at 6
[Doc. No. 11].) The Court also directed that the September 17
and November 10, 2015, Orders be mailed to each of
Milhouse's known addresses, and emphasized that failure
to provide proof of service by December 10, 2015, would
result in a recommendation that the matter be dismissed
without prejudice for failure to prosecute. (Id. at
a month has passed since the December 10, 2015, deadline, and
still the Court has not received proof of legally sufficient
service of process or otherwise heard from Milhouse.
Accordingly, this Court now recommends, in accordance with
its prior orders, that this action be dismissed without
prejudice under Federal Rule of Civil Procedure 41(b) for
failure to prosecute. See Henderson v. Renaissance Grand
Hotel, 267 F. App'x 496, 497 (8th Cir. 2008) (per
curiam) (“A district court has discretion to dismiss an
action under Rule 41(b) for a plaintiff's failure to
prosecute, or to comply with the Federal Rules of Civil
Procedure or any court order.”).
alternative, dismissal of this action without prejudice is
warranted at this time under Rule 4(m), which requires that
“[i]f a defendant is not served within 120 days after
the complaint is filed, the court - on motion or on 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.” Over 200 days
have passed since the complaint in this action was filed.
Milhouse has not effected service of process in a manner
consistent with Rule 4, and he has not demonstrated good
cause for his failure to do so. Moreover, Milhouse has been
repeatedly warned of the deficiencies in service and yet has
not taken steps to move this case forward. Dismissal of this
action without prejudice is therefore warranted at this time.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED that this matter
be DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE under
Federal Rule of Civil Procedure 41(b) or, in the alternative,
under Federal Rule of Civil Procedure 4(m).
Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line
limits set for in LR 72.2(c).
Advisement Dated: This Report and Recommendation will be
considered under advisement 14 days from the date of its
filing. If timely objections are filed, this Report and
Recommendation will be considered under advisement from the
earlier of: (1) 14 days after the objections are filed; or
(2) from the date a timely response is filed.
 Rule 4(i) governs service on the
United States, its agencies, and federal employees. Because
Milhouse brought suit against the individual Defendants only
in their official capacities, he effectively brought suit
only against the federal government itself. (See
Order at 5, Nov. 10, 2015 [Doc. No. 11] (citing Winnett
v. Saline Cnty. Jail, 372 F. App'x 688, 690 (8th
Cir. 2010) (per curiam)).) Milhouse ...