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Anderson v. Falsted

United States District Court, W.D. Oklahoma

March 26, 2018




         Plaintiff 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.

         I. Background

         Plaintiff 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).

         On 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.

         Accordingly, 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.

         II. Discussion

         This 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)).

         Despite 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).


         For the reasons set forth above, the undersigned recommends dismissal of this action without prejudice.


         Plaintiff 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).

         This Report and Recommendation disposes of all issues referred to the undersigned ...

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