Opinion
CIV-22-477-G
09-22-2023
ALLIE THOMAS CHESTER, Plaintiff, v. CITY OF ALTUS, et al., Defendants.
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
CLARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
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.
Plaintiff initially filed this action on June 10, 2022. Doc. No. 1. The Court subsequently stayed the matter until Plaintiff's state court proceedings related to his claims herein were resolved. Doc. No. 54. The Court lifted the stay on June 27, 2023. Doc. No. 59. On August 28, 2023, 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 no later than September 18, 2023. Doc. No. 68 at 3. To date, Plaintiff has failed to comply with the Court's Order.
Additionally, the Court's previous two Orders (Doc. Nos. 66, 68) were returned as undeliverable. Doc. Nos. 67, 70. Thus, Plaintiff has failed to keep the Court apprised of his current contact information, as required by LCvR 5.4.
Plaintiff filed a letter on September 11, 2023, requesting help from the Court because he is now in a county jail. However, he did not provide his new address therein and instead, included the address of his probation officer. Doc. No. 69.
Pursuant to Federal Rule of Civil Procedure 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. Sup. Ct. of U.S., 480 Fed.Appx. 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 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Federal Rule of Civil Procedure 41(b) without attention to any particular procedures).
Plaintiff's failure to provide the Court with the necessary service papers for Defendants, keep the Court apprised of his current contact information, 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). Further, Plaintiff has an additional response opportunity through objection to this Third Supplemental Report and Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to prosecute this matter. Plaintiff is advised of the right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by October 12th, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Third Supplemental 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 Third Supplemental 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.