Billy Fred Hicks v. Gary Deland, Eldon Barnes, Rocky Bennett, Bonney Hartley, Morris R. Warren, Claude Lamph, Robert L. Jones and Brent Edmonds , 940 F.2d 1538 ( 1991 )

940 F.2d 1538

Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.
Billy Fred HICKS, Plaintiff-Appellant,
v.
Gary DELAND, Eldon Barnes, Rocky Bennett, Bonney Hartley,
Morris R. Warren, Claude Lamph, Robert L. Jones
and Brent Edmonds, Defendants-Appellees.

No. 91-4037.

United States Court of Appeals, Tenth Circuit.

Aug. 6, 1991.

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

TACHA, Circuit Judge.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Plaintiff-appellant Billy Fred Hicks filed this action pursuant to 42 U.S.C. Sec. 1983, claiming officials at the Utah State Prison were deliberately indifferent to his serious medical needs. Hicks filed his petition with the district court on May 21, 1990. On October 12, 1990, the magistrate issued an order for Hicks to show cause by October 22, 1990 why no service of process or request for service had been made on any of the named defendants. This order was based on Rule 4(j) of the Federal Rules of Civil Procedure, which provides in relevant part:

3

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

4

Hicks did not respond to this order. In his Report and Recommendation issued December 22, 1990, the magistrate suggested the case be dismissed without prejudice pursuant to Rule 4(j). The district court entered such an order on January 24, 1991.

5

Because Hicks failed to respond to the magistrate's order to show cause why service was not made upon the defendants within 120 days, the district court properly dismissed the case. See Floyd v. United States, 900 F.2d 1045, 1047 (7th Cir.1990); Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985). Because Hicks' action was dismissed without prejudice, the district court's dismissal does not prevent him from filing another lawsuit based on the claims asserted here and attempt to make service of process on the defendants. AFFIRMED. The mandate shall issue forthwith.

*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3