Opinion
Case No. CIV-18-486-R
01-13-2020
RANDY JAY JOLLIFF, Plaintiff, v. STATE OF OKLAHOMA, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis brings this action under 42 U.S.C. § 1983. The matter has been referred to the undersigned magistrate judge consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons this matter should be DISMISSED for failure to prosecute.
I. BACKGROUND
Plaintiff initiated this action on May 16, 2018. (ECF No. 1). Following the screening of Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915 (e)(2)(B), the undersigned concluded Plaintiff's claims were deficient in several respects. On June 16, 2018, a Report and Recommendation was entered recommending that the Court: (1) dismiss, without prejudice, the claims against the State of Oklahoma under the Eleventh Amendment; (2) dismiss, without prejudice, the official and individual capacity claims against Defendant Bear; (3) dismiss, with prejudice, the official capacity claims against Defendant May; (4) dismiss, without prejudice, the individual capacity claims against Defendant May; (5) dismiss, without prejudice, the claims against CCA; and (6) deny the Motion for Preliminary Injunction. Plaintiff was advised to file an objection on or before August 27, 2018. See ECF No. 12. Plaintiff has filed numerous letters and motions, resulting in the Court granting Plaintiff an opportunity to amend his complaint. But to date, the Plaintiff has yet to do so. As it stands, this matter remains without a complaint, a named defendant, or a claim.
The following is a detailing of numerous Motions and Orders resulting in additional time provided to the Plaintiff to object and then additional time to file an amended complaint.
Plaintiff's first Motion for Enlargement of Time (ECF No. 15) received August 17, 2018, requested an extension of 30 days to "answer the Magistrate Report and Recommendation". Plaintiff was granted until September 27, 2018 to file his objections. See ECF No. 16.
Plaintiff's second Motion for Enlargement of Time (ECF No. 17) received September 25, 2018, requested an extension of 30 days to "file objection of Report and Recommendation". Plaintiff was granted until October 11, 2018 to file his objections. See ECF No. 18.
Plaintiff's third Motion for Enlargement of Time (ECF No. 19) received October 10, 2018, requested an extension of 30 days to "file objection of Report and Recommendation". Plaintiff was granted until November 12, 2018 to file his objections. See ECF No. 20.
On November 16, 2018 Plaintiff filed a Motion for Leave to File an Amended Complaint, a Motion for Preliminary Injunction and an Objection to the Report and Recommendation. See ECF Nos. 23, 24 and 25.
On December 3, 2018 an Order Adopting the undersigned Report and Recommendation was entered. Plaintiff's claims were dismissed and Mr. Jolliff was granted forty-five days to file an amended complaint. The Motion for Preliminary Injunction was re-referred to the undersigned. See ECF No. 26.
On December 13, 2018, Plaintiff's deadline for submitting his amended complaint was set for January 17, 2019. See ECF No. 28.
Plaintiff's fourth Motion for Enlargement of Time (ECF No. 29) received January 11, 2019, requested until March 17, 2019 to "file amended complaint and a motion for reconsideration on order 12/03/18". Plaintiff was granted until March 18, 2019 to file his amended complaint and motion for reconsideration. See ECF No. 30.
Mr. Jolliff's deadline passed without the filing of an amended complaint. On April 5, 2019, Judge Russell found that the Court had previously concluded that Plaintiff's claims were subject to dismissal as set forth in the August 9, 2018 Report and Recommendation and the December 3, 2018 Order adopting the Report and Recommendation and ordered the action dismissed. A Judgment was entered, thereby closing the case. See ECF Nos. 31 and 32.
On April 26, 2019, the Court received Plaintiff's fifth Motion for Enlargement of Time (ECF No. 33), requesting 90 days, or until July 20, 2019 to "heal some and my thinking to start again". Plaintiff's Motion explained to the Court that he had been seriously ill and was not yet fully recovered. Plaintiff's Motion was unclear as to what relief he was specifically requesting.
On May 16, 2019, Plaintiff's sixth Motion for Extension (ECF No. 34) was received requesting 90 days to file an amended complaint. In light of the Plaintiff's reported physical incapacitation, the Court vacated the Judgment (ECF No. 32) and Plaintiff was granted until July 20, 2019 to file his amended complaint. Other motions contained in Plaintiff's Motion for Enlargement of Time (ECF No. 33) were deferred until after the filing of an amended complaint. See ECF No. 36.
Once again Plaintiff's deadline passed without the filing of an amended complaint. On August 8, 2019, Judge Russell re-adopted the April 5, 2019 Order adopting the Report and Recommendation, dismissed this action, and entered Judgment accordingly. In addition, Plaintiff's Motion for Appointment of Counsel (ECF No. 33) was denied as moot. See ECF Nos. 37 and 38.
On September 12, 2019, Plaintiff filed a Motion to Reopen Case (ECF No. 39) explaining to the Court that his medical condition continues to prevent him from "preparing, filing or researching". Plaintiff requests the Court "appoint counsel and restart from the beginning". On September 19, 2019, Judge Russell granted Plaintiff's motion to the extent it requested that the Court vacate the August 8, 2019 Order and Judgment. Plaintiff was granted an extension to file an amended complaint within forty-five days of entry of this Order. The matter is re-referred to Magistrate Judge Erwin for consideration of Plaintiff's request for the appointment of counsel set forth in the instant motion (ECF No. 39) and for additional preliminary proceedings.
Plaintiff's seventh Motion for Extension of Time (ECF No. 41) was received October 7, 2019, and requested an "ORDER EXTENDING TIME". Plaintiff made no specific time request for his extension. Plaintiff was granted until December 4, 2019 to file his amended complaint. Plaintiff's request for counsel was denied. See ECF No. 42.
On October 24, 2019 Plaintiff filed a Notice attempting to correct his Motion for Extension of Time (ECF No. 41) requesting until June 4, 2020 to finalize the amended complaint. See ECF No. 43. The undersigned entered an Order (ECF No. 44) essentially denying the Plaintiff's corrective request for an additional 180 days to file his amended complaint. Plaintiff's deadline remained December 4, 2019. Plaintiff was cautioned that should he fail to file an amended complaint by the established deadline, a report and recommendation will be entered recommending dismissal of this action for Plaintiff's failure to diligently prosecute his claims. See id.
To date, Plaintiff's deadline has passed without the filing of an amended complaint. In addition, Plaintiff has not communicated with the Court in any way following the Court's last Order confirming the December 4, 2019 deadline.
II. STANDARD FOR DISMISSAL
Under Fed. R. Civ. P. 41(b), the Court may dismiss an action, sua sponte, if "the plaintiff fails to prosecute or to comply with . . . a court order." Fed. R. Civ. P. 41(b); see also Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (holding that despite Rule 41(b)'s reference to a defendant's motion, "the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or court's orders"). "The 'authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, governed . . . by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" U.S. ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)).
While a court should impose "dismissal for failure to prosecute . . . only after careful exercise of judicial discretion," "dismissal is an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules." Id. at 855. However, because dismissal with prejudice is an "extreme sanction," appropriate only in cases of willful misconduct, the court must consider: (1) "the degree of actual prejudice" to defendants; (2) "the amount of interference with the judicial process"; (3) Plaintiff's "culpability"; (4) "whether the court warned [Plaintiff] in advance that dismissal of the action would be a likely sanction for noncompliance"; and (5) if "lesser sanctions" would be more effective. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (quotations omitted); see also Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (holding that when a court dismisses a complaint with prejudice under Rule 41(b), it should consider the "'Ehrenhaus criteria'") (quoting Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir. 1997)).
III. ANALYSIS
Although plaintiff proceeds without an attorney, he bears the responsibility of prosecuting this case with due diligence. The Court must liberally construe pro se filings; however, pro se status does not excuse the obligation of any litigant to comply with the same rules of procedure that govern other litigants. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Plaintiff has failed to comply with this Court's many explicit Orders regarding the filing of an amended complaint, thereby unduly delaying resolution of this matter.
The Federal Rules of Civil Procedure give a district court ample tools to deal with a recalcitrant litigant, including dismissal pursuant to Rule 41(b). Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Applying the Ehrenhaus factors, supra., the undersigned finds that Plaintiff's failure to prosecute and comply with the Court's Orders warrants dismissal.
Regarding the first factor, the absence of an amended complaint complying with the Court's Order impedes the Court's ability to review pleadings from Plaintiff and future defendants for consideration in reaching a fair and just conclusion of Plaintiff's claims. Plaintiff's inaction is inconsistent with the true adjudication of an adverse and non-frivolous dispute.
Second, continued noncompliance with the judicial process by failing to comply with the Court's Orders flouts the Court's authority, similar to the Tenth Circuit's determination in Ehrenhaus. Ehrenhaus, 965 F.2d at 921. Additionally, Plaintiff's persistent failure to comply with the Court's Orders by filing an amended complaint compels the Court's continuous monitoring of this matter and unnecessary issuance of orders, in turn disproportionately increasing the workload of the Court and therefore interfering with the administration of justice.
Third, the docket does not indicate that any of the Orders regarding Plaintiff's opportunity to file an amended complaint and avoid dismissal have been returned as undeliverable. Although Plaintiff indicates that his hospitalization between May 30, 2019 and August 31, 2019 caused a delay and non-receipt of some mail, the Plaintiff at every request has been afforded amply time over seven (7) continuances to meet the established deadlines. Plaintiff's deadline of December 4, 2019 was last ordered by the Court on November 19, 2019. Plaintiff has failed to file an amended complaint or otherwise respond to the Court. Thus, the undersigned can only conclude Plaintiff has willfully refused to communicate with the Court and/or prosecute his claims. The undersigned finds this intentional conduct culpable.
Fourth, the undersigned cautioned Plaintiff, that should he fail to file an amended complaint by the established deadline, a report and recommendation would be entered recommending dismissal of this action for Plaintiff's failure to diligently prosecute his claims. See ECF No. 44. Where "the trial court has . . . expressly identified dismissal as a likely sanction," "Ehrenhaus's [final] prong has been met[.]" Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1149 (10th Cir. 2007).
Fifth and finally, the undersigned finds that no lesser sanction would be sufficient. It appears to the undersigned that Plaintiff has all but abandoned his case and his failure to prosecute or comply with the Court's Orders leaves the case in legal limbo. Accordingly, the undersigned finds dismissal without prejudice is warranted.
IV. RECOMMENDATION
It is therefore recommended that this matter be DISMISSED without prejudice. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by January 30, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Plaintiff is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on January 13, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE