Opinion
No. CIV-19-452-F
10-22-2019
TRAVIS DEAN DOWNING, Plaintiff, v. FNUM MARTIN, Warden, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Complaint be dismissed without prejudice due to Plaintiff's failure to prosecute this action.
On June 21, 2019, the Court entered an Order Requiring Service and Special Report ("Order") instructing Plaintiff to complete the necessary service papers and furnish the same to the Court Clerk within twenty-one (21) days. Doc. No. 7 at 3. Because Plaintiff is proceeding in forma pauperis, upon receipt of said papers, the United States Marshal Service would attempt to serve Defendants on Plaintiff's behalf. Id. at 3-4. The Court directed Plaintiff to complete service of process no later than 90 days from the date of the Order. Id. at 4. To date, Plaintiff has failed to submit the necessary service papers and service of process has not been completed.
On September 23, 2019, the Court issued an Order to Show Cause why this case should not be dismissed based on Plaintiff's failure to serve Defendants. Doc. No. 8. The Court explained that pursuant to Fed. Rule of Civ. P. 4(m), when a defendant is not served with process and a copy of the complaint within the applicable deadline, "the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id. at 2. Plaintiff failed to respond.
Moreover, pursuant to Fed. R. Civ. P. 41(b), if a plaintiff "fails to prosecute or to comply with these rules or a court order," the Court may dismiss the action. The Tenth Circuit "ha[s] consistently interpreted Rule 41(b) to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute." Huggins v. Supreme Court of U.S., 480 F. App'x 915, 916-17 (10th Cir. 2012) (quotations omitted); see also 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." (quotations omitted)). If the dismissal is without prejudice, the Court generally need not follow any "particular procedures" in entering the dismissal order. AdvantEdge Bus. Grp., 552 F.3d at 1236; see also Robledo-Valdez v. Smelser, 593 F. App'x 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed. R. Civ. P. 41(b) without attention to any particular procedures).
Plaintiff's failure to serve Defendants in this matter and/or comply with the Court's Orders leaves the Court unable "to achieve [an] orderly and expeditious" resolution of this action. Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative). As outlined above, the Court has provided Plaintiff sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure serve Defendants and/or comply with the Court's Orders. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by November 12th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 22nd day of October, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE