Opinion
CIV-22-540-G
11-01-2023
DARRYL TAMEZ, Plaintiff, v. ABEL GONZALEZ, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
The undersigned recommends dismissal of this action without prejudice based on Plaintiff's failure to follow the Court's orders and his lack of interest in prosecuting this suit.
I. Discussion.
When Plaintiff filed this action, he was incarcerated in Altus, Oklahoma at the Jackson County Jail. Doc. 1. Plaintiff later filed a notice of change of address to the Greer County Jail located in Mangum, Oklahoma. Doc. 21. Plaintiff's last filing with this Court was a letter the Court received on January 25, 2023, from the Greer County Jail. Doc. 26.
On September 29, 2023, the Court re-referred this matter to the undersigned after declining to dismiss based upon Plaintiff's representation “that he wishes to proceed with this action.” Doc. 28, at 1-2.The Clerk of Court sent the Court's order to Plaintiff's last known address. The Postmaster returned the document to the Court as undeliverable on October 10, 2023. Doc. 30.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Upon this re-referral and given the passage of time since his last filing and last address update, the undersigned ordered Plaintiff to submit a change of address form to the Court advising the Court of his current address by October 25, 2023. Doc. 29. The undersigned warned Plaintiff that his failure to comply with the Court's order could result in the dismissal of his case. Id. at 2. The Clerk of Court sent the order, along with a change of address form, to Plaintiff's last known address. The Postmaster returned the documents to the Court as undeliverable on October 18, 2023. Doc. 31.
Local Civil Rule 5.4 requires a pro se litigant to advise the Court of the litigant's current address and contact information. See LCvR5.4. “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id.; see also Fed.R.Civ.P. 5(b)(2)(C) (stating service is complete upon mailing to a person's last known address).
Under Fed.R.Civ.P. 41(b), a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). Courts have consistently interpreted this rule to permit sua sponte dismissal. Huggins v. Sup. Ct. of the U.S., 480 Fed.Appx. 915, 916-17 (10th Cir. 2012); 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.” (quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without prejudice, the court may dismiss without attention to the non-exhaustive list of factors that, by contrast, must inform a dismissal with prejudice. AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
Plaintiff appears pro se; still he must follow the same rules as any other litigant. See Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). The undersigned finds that Plaintiff's inaction and failure to comply with its orders have left the Court without the ability “to achieve an orderly and expeditious” resolution of this case. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution). Dismissal of this action without prejudice to refiling is thus warranted under Rule 41(b) and this Court's Local Rules. The undersigned recommends that the Court dismiss this case.
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this case without prejudice.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before November 22, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral in this matter.
ENTERED this 1st day of November, 2023.