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Becker v. Wilkinson

August 3, 2006

DALE G. BECKER, PLAINTIFF,
v.
REGINALD A. WILKINSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

JUDGE JAMES L. GRAHAM

REPORT AND RECOMMENDATION

This is a civil rights action under 42 U.S.C. §1983, in which Dale G. Becker ("plaintiff"), a state inmate, claims that he has been denied his constitutional rights because he has been subjected to second-hand smoke at the Ross Correctional Institution ("RCI"). The complaint names as defendants officials of the Ohio Department of Rehabilitation and Correction ("ODRC") and employees at RCI. This matter is before the Court on plaintiff's Praecipe ("Plaintiff's Motion for Default Judgment"), Doc. No. 11, and on the Ohio Attorney General's Motion to Dismiss ("Defendants' Motion to Dismiss"), Doc. No. 23. For the reasons set forth below, it is RECOMMENDED that both motionsbe DENIED.

I. FACTS

Plaintiff filed this action on September 30, 2005, upon payment of the full filing fee. On October 31, 2005, plaintiff filed a Proof of Service,declaring that each defendant had been served by him by certified mail service. Doc. No. 4.

On November 18, 2005, plaintiff filed Plaintiff's Motion for Default based on defendants' failure to respond to the Complaint. Doc. No. 11. That motion is now fully at issue.

On February 16, 2006, defendants filed Defendants' Motion to Dismiss based on plaintiff's failure to properly effect service of process. Doc. No. 23. That motion too, is fully at issue.

II. ANALYSIS

A. Defendants' Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(5), a trial court, upon motion, may dismiss a complaint for failure to make proper service of process within 120 days after the complaint is filed. Fed. R .Civ. P. 4(m).

Proper service on individuals within a judicial district of the United States must conform to Fed. R. Civ. P. 4(e), which states:

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or incompetent person, may be effected in any judicial district of the United States:

(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or

(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint ...


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