Opinion
Case No. CIV-19-919-D
12-31-2019
ELGRET LORENZO BURDEX, Plaintiff, v. J. GERLACH, et al., Defendants.
REPORT AND RECOMMENDATION
On October 4, 2019, Plaintiff, appearing pro se, initiated the present action under 42 U.S.C. § 1983 while he was incarcerated in the Grady County Jail. Doc. 1. Plaintiff filed an amended complaint on December 2, 2019. Doc. 13. Chief United States District Court Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). For the following reasons, the undersigned recommends dismissal of this action based on Plaintiff's failure to prosecute.
Plaintiff's amended complaint was post-marked November 27, 2019. See Doc. 13-1.
I. Discussion.
At the time Plaintiff submitted his complaint and amended complaint he was a pretrial detainee at the Grady County Jail. Docs. 1, 13. On December 3, 2019, the court ordered Plaintiff to cure his deficient amended complaint, which was unsigned and appeared to seek both habeas corpus and civil rights relief, by December 24, 2019. Doc. 14. See Fed. R. Civ. P. 11(a). Plaintiff never responded and the court's order was returned to the court with the notation "Not in Grady County Jail Return to Sender." Doc. 15. The court then conducted its own investigation into Plaintiff's whereabouts and discovered Plaintiff was no longer listed in the jail log on the Grady County Jail website. See http://www .gclec.com:81/364F0001/jailwebip.html (last visited December 27, 2019).
Under Fed. R. Civ. P. 41(b), the court may dismiss an action if the plaintiff "fails to prosecute or to comply with these rules or a court order[.]" Fed. R. Civ. P. 41(b); see also Huggins v. Supreme Court of the U.S., 480 F. App'x 915, 916-17 (10th Cir. 2012) (noting that Rule 41(b) has been "consistently interpreted . . . to permit courts to dismiss actions sua sponte . . . ." (citation omitted)); AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) ("'A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules.'" (citation omitted)). And, if dismissal is without prejudice, the court may dismiss without first considering a "non-exhaustive list of factors." AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
If the statute of limitations has expired, a dismissal without prejudice for failure to prosecute or comply with court rules and orders can have the same practical effect as a dismissal with prejudice. See AdvantEdge Bus. Grp., 552 F.3d at 1236. Here, however, Plaintiff timely commenced his civil rights action. Thus, Oklahoma's savings statute would allow Plaintiff one year from the date of this dismissal to recommence his action. See Okla. Stat. tit. 12, § 100; see also Burdex v. Smith, No. CIV-10-119-D, 2012 WL 1869539, at *3 (W.D. Okla. Apr. 18, 2012) (unpublished recommendation) (finding that because Oklahoma's savings statute would allow the inmate to refile his timely action within one year of dismissal, dismissal without prejudice based on a failure to comply with court orders did not operate as a dismissal with prejudice), adopted, 2012 WL 1869411 (W.D. Okla. May 22, 2012) (unpublished order). --------
Plaintiff appears pro se; nonetheless, he must follow the same rules as any other litigant. See Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). Plaintiff has not notified the court of his change in address, see LCvR5.4(a), despite being released from the Grady County Jail almost one month ago. See Doc. 15.
The undersigned finds that Plaintiff's inaction and failure to comply with the undersigned's orders have left the court without the ability "to achieve an orderly and expeditious" resolution of the action. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution). Accordingly, the undersigned recommends that the court dismiss this case without prejudice.
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends that the court dismiss the case without prejudice. The court's adoption of this recommendation will moot Plaintiff's motion for appointment of counsel and motion for production of documents. Docs. 11, 12.
The undersigned advises the Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before January 21, 2020, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the Plaintiff that failure to make a timely objection to the report and recommendation waives the right to appellate review of both factual and legal questions 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 Magistrate Judge in this matter.
ENTERED this 31st day of December, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE