Opinion
1:21-00007
12-08-2021
RODNEY O. FRANKLIN v. GILES COUNTY, et al.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE
TO: Honorable William L. Campbell, Jr., District Judge
By Memorandum and Order entered April 30, 2021 (Docket Entry No. 8), the Court referred this prisoner civil rights action to the Magistrate Judge for pretrial proceedings.
Rodney Franklin (“Plaintiff”) is a former inmate of the Giles County Jail (“Jail”) who is no longer incarcerated. On February 26, 2021, he filed this pro se and in forma pauperis lawsuit under 42 U.S.C. § 1983, seeking relief based on allegations that his constitutional rights were violated by the conditions of confinement at the Jail. Upon initial review, the Court found that Plaintiff stated an arguable Eighth Amendment claim against two defendants and directed Plaintiff to return completed service packets for the defendants. (Id.)
After Plaintiff returned a single summons listing both defendants, the Court advised him that a service packet must be returned for each defendant, directed the Clerk to re-send to Plaintiff two new service packets, and instructed Plaintiff to return a completed service packet for each defendant to the Clerk's Office within 30 days of entry of the order so that process could issue. (Docket Entry No. 11.)
Plaintiff failed to return service packets as instructed. Instead, he sent a letter to the Court on July 7, 2021, requesting additional time to return completed service packets and to obtain an attorney to represent him in the case. (Docket Entry No. 12.) The Court then granted Plaintiff until August 30, 2021, to (1) obtain counsel and (2) return completed service packets for each remaining defendant. (Docket Entry No. 13.) Plaintiff was specifically warned by the Court that his failure to return completed service packets would result in a recommendation that this action be dismissed. To-date, Plaintiff has not returned the completed service packets and no attorney has entered an appearance on his behalf.
Rule 4(m) requires that the defendants be served with process within 90 days of the date an action is filed and provides that, in the absence of a showing of good cause by the plaintiff for why service has not been timely made, the court "must dismiss" the action without prejudice. Because the two defendants in this case have not been served with process within the time required by Rule 4(m), this action should be dismissed.
It is also well settled that federal trial courts have the inherent power to manage their own dockets, Link v. Wabash R.R. Co., 370 U.S. 626 (1961), and Rule 41(b) of the Federal Rules of Civil Procedure permits the Court to dismiss an action upon a showing of a clear record of delay, contumacious conduct, or failure to prosecute by the plaintiff. See Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir. 1980). Plaintiff's failure to return service packets as directed indicates that he has lost interest in prosecuting his case.
RECOMMENDATION
For the reasons set out above, it is respectfully RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
This Report and Recommendation provides notice to Plaintiff of the Court's intention to sua sponte dismiss the action, and the fourteen-day period for filing objections provides him with the opportunity to show good cause why the action should not be dismissed.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to which objection is made. See Rule 72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to the objections must be filed within fourteen (14) days after service of objections. See Federal Rule 72(b)(2) and Local Rule 72.02(b).