Opinion
CIV-20-168-SLP
08-05-2021
ARTEMIO MIRANDA MANUEL, Plaintiff, v. RALPH HANSON, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Artemio Miranda Manuel, formerly a federal prisoner, appears pro se and in forma pauperis. He purports to bring this civil rights action pursuant to 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights. Additionally, Plaintiff asserts violation of his rights under the Americans with Disabilities Act. (ADA). According to Plaintiff, these violations occurred while he was incarcerated at the Great Plains Correctional Facility (GPCF). United States District Judge Scott L. Palk has referred this action for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that all claims against unserved defendants in this action be DISMISSED without prejudice for failure to prosecute and failure to follow court rules.
Plaintiff has since completed his term of imprisonment and been deported to Mexico. (ECF No. 40:2).
Because Plaintiff was, at the time of the filing of his complaint, a federal prisoner, the Court construes his claim as arising under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
I. BACKGROUND
The historical background of events leading to this lawsuit is based on Plaintiff's Complaint (ECF No. 1), the verified court-ordered Special Report submitted on behalf of the two defendants who have been served, (ECF No. 40) and Plaintiff's response (ECF No. 43) to this Court's Second Order to Show Cause. (ECF No. 42).
All named Defendants in this action are or were employees of GPCF, a private prison owned by GEO Group, which has contracted with the Bureau of Prisons to house federal prisoners. (ECF No. 40:1-2).
Before his transfer to GPCF, Plaintiff was incarcerated at Big Spring Correctional Center (BSCC) where he was serving a 30-month sentence imposed after his conviction for Unlawful Re-entry of a Deported Alien. (ECF No. 40:3); (ECF No. 40-1). Medical records from BSCC demonstrate that Plaintiff slipped in the shower, fell on his right knee, and suffered a significant injury thereto on July 17, 2018. (ECF No. 40-2:2). He was referred to an outside medical provider, and his knee was ultimately repaired surgically on February 5, 2019. (ECF No. 40-2:41).
Plaintiff states that, at the time he filed his Complaint in this case, a civil action based on his shower accident was pending. He does not identify the court in which the case was filed. (ECF No. 1:3).
On June 17, 2019, Plaintiff was transferred to GPCF. (ECF No. 40-5). In this action, Plaintiff has named the following defendants: Ralph Hanson, Warden; AWK Mooter; FNU Gooch, Major Chief of Security; FNU Perzanowski, Sergeant; K Herring and K Saurer, Hobby Craft Teachers; FNU Exinia, Hobby Craft Teacher; FNU Curnmet, SIS; FNU Holly, Doctor; Jane Doe 1, Health Services Administrator; Jane Doe 2, Nurse; John Doe 1, Utilization Committee; John Doe 2, Doctor; and Geo Group, Inc. Plaintiff contends he was not properly accommodated for his disability while he was incarcerated at GPCF. He further complains the defendants were deliberately indifferent to his serious medical needs because he was not referred to an outside facility for a total knee replacement.
In the body of the Complaint, Plaintiff also implicates a Lt. Kase and a Ms. Sgt. Tampa in the alleged violation of his rights. (ECF No. 1:7). It is not clear whether Plaintiff intended to name these two prison officials as defendants. But regardless of Plaintiff's intent, these two people have not been served.
On May 8, 2020, Plaintiff requested summonses for Defendants Mooter, Gooch, Perzanowski, Herring; Saurer, Exinia, Curnmet, Brown and Roody. (ECF No. 12). But as of July 31, 2020, no proof of service had been entered on the docket sheet. Therefore, this Court ordered Plaintiff to show cause by August 17, 2020, as to why service had not been completed. The Order specifically stated that failure to respond could result in dismissal of the Complaint. (ECF No. 18). The Order noted that “Plaintiff did not provide the necessary copies of the Complaint or Order Requiring Service and Special Report” with the summonses. (ECF No. 18:1).
Plaintiff later admitted that he submitted the summonses without the required copies of the Complaint and Order for Special Report.
The identity of this defendant is unclear. Plaintiff identifies this defendant as “Lt. Ms. Roody, ” but no such person is named in the Complaint. It appears that service on this individual was not attempted. (ECF No. 27).
When Plaintiff neither responded to the show cause order nor returned proof of service on any defendant, the undersigned magistrate judge submitted a Report and Recommendation recommending Plaintiff's action be dismissed for failure to comply with court orders. (ECF No. 19). The referring district judge adopted the Report and Recommendation and dismissed the case. (ECF Nos. 20, 21).
In the meantime, Plaintiff filed a motion for extension of time (ECF No. 22), which was construed as a motion for extension of time to file an objection to the Report and Recommendation. The referring judge vacated his previous orders and granted the extension of time to object. (ECF No. 23). Nevertheless, the Order stopped short of finding that Plaintiff had shown “good cause” for his failure to comply with the Court's previous orders or for failure to serve these defendants. (ECF No. 23:2).
Plaintiff filed his objection to the Report and Recommendation, (ECF No. 24), explaining that he was unable to provide the necessary documents for service of process because he had been transferred to ICE detention where he had been “locked down.” Then he was deported to Mexico. He explained that his wife was receiving his mail from this Court, but that she had been unable to deliver to him the Court's Show Cause Order in time for him to file a timely response. He further stated he had sent $216.00 to this Court to pay for copies of the necessary documents to attach to the summonses. After having considered Plaintiff's Objection, the referring judge declined to adopt the previously filed Report and Recommendation and re-referred the matter to the undersigned magistrate judge.
On November 4, 2020, Plaintiff's time to effect service was extended until January 5, 2021. (ECF No. 26). On November 9, 2020, summonses were electronically issued to Defendants FNU Curnmet, FNU Exinia, FNU Gooch, Ralph Hanson, K. Herring, AWK Mooter, FNU Perzanowski and K. Saurer. (ECF No. 27). On November 25, 2020, summonses were returned executed for Defendants Mooter and Exinia. (ECF Nos. 28, 29). The summonses that had been submitted for all other defendants were all returned unexecuted. (ECF Nos. 30, 31, 32, 33, 34, 35). The unexecuted returns all note that none of these individual defendants is currently employed at GPCF.
The record indicates that Plaintiff never attempted to serve the remaining defendants including GEO Group, Inc. or the John and Jane Doe defendants.
On March 5, 2021, Defendants Mooter and Exinia filed a court-ordered Special Report (ECF No. 40) and an alternative Motion to Dismiss or Motion for Summary Judgment (ECF No. 41). As of May 27, 2021, Plaintiff had failed to serve the remaining defendants and failed to respond to the dispositive motion filed by Defendants Mooter and Exinia. On that date, this Court issued a second Order directing Plaintiff to show cause as to why the claims against the unserved Defendants should not be dismissed for failure to serve and failure to prosecute. The Order also notified Plaintiff that, should he fail to respond to the pending dispositive motion, the Court would deem the dispositive motion confessed pursuant to Rule 7.1(g) and rule on the motion without further delay. (ECF No. 42).
The alternative Motion to Dismiss or Motion for Summary Judgment will be considered in a separate Report and Recommendation.
Plaintiff filed a letter with the Court on June 21, 2021, which is construed as a response both to the show cause order and to the dispositive motion. (ECF No. 43). Plaintiff's response did not, however, directly address the service issue. Plaintiff reiterated that he had been deported to Mexico and had difficulty responding in a timely manner to this Court's orders. Otherwise, the response simply repeated the allegations in Plaintiff's Complaint with a new legal theory based on “commercial law.” (ECF No. 43:3). Plaintiff did not include any discussion regarding the status of his attempts to serve the defendants in question.
II. ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal of an action “[i]f the plaintiff fails to prosecute or to comply with the [Federal Rules of Civil Procedure] or a court order.” Fed.R.Civ.P. 41(b). See 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.”) (Internal citation omitted). As the United States Court of Appeals for the Tenth Circuit explained, “the need to prosecute one's claim (or face dismissal) is a fundamental precept of modern litigation.” See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007). “Although the language of Rule 41(b) states the defendant(s) should file a motion to dismiss, 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.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
The Court is sympathetic to Plaintiff's difficulties in prosecuting this case, given his current circumstances. However, proof of service is the Plaintiff's responsibility and return of service on each defendant is due 90 days from the date an action is filed. See Fed. R. Civ. P. 4(m). Plaintiff's Complaint was filed over one year ago, and this Court has repeatedly given Plaintiff extensions of time to serve the Defendants.
The Court finds that Plaintiff's failure to serve the aforementioned Defendants warrants dismissal without prejudice, given the Court's right and responsibility to manage its cases. See Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe County Justice Center, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (sua sponte dismissal for failure to comply with Court's orders permitted under federal rules, and court need not follow any particular procedures in dismissing actions without prejudice for failure to comply).
RECOMMENDATION
Based on the foregoing findings and law, it is recommended that this action be DISMISSED as against all named Defendants, except Mooter and Exinia, without prejudice for Plaintiff's failure to comply with this Court's Orders. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by August 23, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that failure to timely object 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 does not dispose of all issues referred to the undersigned magistrate judge in the captioned matter.