United States District Court, W.D. Oklahoma
CHARLES B. ANDERSON JR., Plaintiff,
LIEUTENANT FALSTED, Defendants.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
Charles B. Anderson Jr., a federal prisoner appearing pro se
and proceeding in forma pauperis, filed this
Bivens action seeking monetary relief against eleven
officials at the Federal Correctional Institution, El Reno.
See Compl. (Doc. No. 1) at 1-14. Chief United States
District Judge Joe Heaton has referred this matter to the
undersigned Magistrate Judge for proceedings consistent with
28 U.S.C. § 636. The undersigned recommends that
Plaintiff's action be dismissed because he has failed to
prosecute his case in accordance with this Court's orders
and procedural rules.
initiated this action on September 12, 2016. See
Compl. at 1. After conducting a preliminary review of the
Complaint, the Court dismissed all claims against the ten
“John and Jane Doe” defendants named in the
Complaint and issued an Order Requiring Service and Special
Report (Doc. No. 24) as to the sole remaining defendant,
Lieutenant Falsted. See R. & R. (Doc. No. 21);
Order Adopting R. &. R. (Doc. No. 23). Pursuant to the
Order Requiring Service and Special Report, Plaintiff was
required to return all necessary summons forms to the Court
Clerk within 21 days from the date of the Order for attempted
service by the United States Marshals Service. See
Order Requiring Service and Special Report, at 1-2. The Order
further directed that Plaintiff had 90 days from the date of
the Order to ensure that proof of service was filed and
advised Plaintiff that failure to complete timely service
could result in dismissal of his lawsuit. See id. at
2; see also Fed. R. Civ. P. 4(m).
December 5, 2017, Plaintiff filed a letter indicating that he
was unsure how to proceed with service upon Defendant
Lieutenant Falsted and that he wished to amend his complaint
“after the special report is issued” to name a
different defendant. See Pl.'s Letter (Doc. No.
26) at 2-5. In response, the undersigned issued an Order
informing Plaintiff that the deadline to file proof of
service upon Defendant Lieutenant Falsted was January 26,
2018, and that, if he chose to amend his Complaint, he should
do so within 21 days of the Order (i.e., by February 8,
2018). See Order of January 18, 2018 (Doc. No. 27)
at 2. The Court mailed a copy of this Order to
Plaintiff's address of record, but the mailing was
returned as undeliverable on January 23, 2018, with the
notation: “Return to Sender: Not at this
address.” See Doc. No. 28, at 1. The 90-day
deadline for Plaintiff to file proof of service expired
January 26, 2018, and Plaintiff did not, by February 8,
2018,, or afterward, amend his Complaint.
on February 23, 2018, Plaintiff was directed to (1) file a
change-of-address form with the Court, and (2) show cause as
to why his claims against Defendant should not be dismissed
without prejudice due to failure to serve Defendant.
See Order of February 23, 2018 (Doc. No. 29) at 1-3.
Plaintiff was directed to comply with this Order no later
than March 16, 2018, and advised that “failure to
timely comply with this Order may result in the dismissal of
this action.” Id. at 3. To date, Plaintiff has
not complied with or otherwise responded to the Court's
January 18, 2018 or February 23, 2018 Orders.
Court has inherent authority to clear its “calendar
of cases that have remained dormant because of the inaction
or dilatoriness of the parties seeking relief.”
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962).
“Dismissal for failure to prosecute is a recognized
standard operating procedure in order to clear the deadwood
from courts' calendars where there has been prolonged and
unexcused delay, ” Bills v. United States, 857
F.2d 1404, 1405 (10th Cir. 1988), or to “sanction a
party for failing to prosecute . . . or for failing to comply
with local or federal procedural rules, ”
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker &
Assocs., 552 F.3d 1233, 1236 (10th Cir. 2009) (internal
quotation marks omitted). “When dismissing a case
without prejudice, a district court may, without abusing its
discretion, enter such an order without attention to any
particular procedures.” AdvantEdge Bus. Grp.,
552 F.3d at 1236 (internal quotation marks omitted);
accord Robledo-Valdez v. Smelser, 593 Fed.Appx. 771,
775 (10th Cir. 2014) (citing Fed.R.Civ.P. 41(b)).
being given ample opportunity, Plaintiff has not taken the
steps necessary to prosecute his case. See, e.g.,
Robledo-Valdez, 593 Fed.Appx. at 774.
Plaintiff's failure to prosecute his action and to comply
with the Court's Orders leaves the Court unable “to
achieve the orderly and expeditious” resolution of this
action. Link, 370 U.S. at 629-31 (discussing the
inherent power of a court to dismiss suits for lack of
prosecution on its own initiative). The Court has provided
Plaintiff sufficient notice of the possibility of dismissal
and opportunity to respond, as well as an additional response
opportunity through objection to this Report and
Recommendation. See Order of Jan. 18, 2018; Order of
Feb. 23, 2018; LCvR 5.4(a).
reasons set forth above, the undersigned recommends dismissal
of this action without prejudice.
OF RIGHT TO OBJECT
is advised of his right to file an objection to this Report
and Recommendation with the Clerk of this Court by April 16,
2018, in accordance with 28 U.S.C. § 636 and Federal
Rule of Civil Procedure 72. Plaintiff is further advised that
failure to timely object to this Report and Recommendation
waives the right to appellate review of both factual and
legal issues contained herein. See Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
Report and Recommendation disposes of all issues referred to
the undersigned ...