Opinion
No. CIV-19-296-G
09-26-2019
DAVID ROBIN WHITMORE, Plaintiff, v. AUDREY SINGLETON, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, 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.
Plaintiff initially filed this action on April 1, 2019. Doc. No. 1. At that time, Plaintiff was a pre-trial detainee incarcerated at the Cleveland County Detention Center. Plaintiff submitted an Application for Leave to Proceed In Forma Pauperis, which the Court subsequently granted. Doc. Nos. 10, 11.
On June 28, 2019, Plaintiff filed a Notice of Change of Address indicating that he was no longer incarcerated. Doc. No. 21. On August 21, 2019, the Court directed Plaintiff to file an amended Application for Leave to Proceed In Forma Pauperis in light of his release from incarceration and possible change in financial circumstances. Doc. No. 27. The Order directed Plaintiff to file the same no later than 30 days from the date of the Order. Id. at 2. Thus, pursuant to Fed. R. Civ. P. 6(d), Plaintiff's deadline to file his amended Application was Wednesday, September 25, 2019. To date, Plaintiff has failed to submit an amended Application.
Additionally, on June 21, 2019, the Court entered an Order Requiring Service and Special Report directing Plaintiff to submit service papers for each named Defendant within 21 days of the date of the Order. Doc. No. 20 at 3-4. To date, Plaintiff has failed to do so.
In light of Plaintiff's repeated failure to comply with the Court's Orders, the action is subject to dismissal without prejudice to re-filing. 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. Id. 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 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, 631 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative). Accordingly, this action should be dismissed without prejudice.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to 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 October 16th , 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 26th day of September, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE