Opinion
2:24CV00055-BSM-JTK
11-12-2024
MARCEESE WATKINS, ADC # 156854 PLAINTIFF v. BLEDSOE, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
JEROME T. KEARNEY UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS
The following recommended disposition (“Recommendation”) has been sent to United States District Judge Brian S. Miller. Any party may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
Pending is Defendant Korey Everett's Motion to Dismiss for Failure to Comply With a Court Orders. (Doc. No. 33). For the reasons set out below, the Court recommends Defendant Everett's Motion (Doc. No. 33) be granted and Plaintiff's claims be dismissed without prejudice.
According to Defendant Everett, he propounded his first set of discovery requests on June 13, 2024. (Doc. No. 34 at 1). After Plaintiff failed to respond, on July 22, 2024 Defendant Everett sent Plaintiff a letter asking him to respond. (Id.). Defendant Everett sent Plaintiff a second letter on August 6, 2024, again asking Plaintiff for his responses to Defendant Everett's discovery requests. (Id.). Plaintiff did not respond.
On August 20, 2024, Defendant Everett filed a Motion to Compel. (Doc. No. 27). The Court directed Plaintiff to respond to Defendant Everett's Motion, but Plaintiff failed to do. (Doc. No. 29). The Court granted Defendant Everett's Motion to Compel on September 9, 2024, and direct Plaintiff to respond to Defendant Everett's discovery requests within 15 days. (Doc. No. 32). Plaintiff has not provided any responses. (Doc. No. 34 at 1).
On October 14, 2024, Defendant Everett filed his pending Motion to Dismiss. (Doc. No. 33). On October 16, 2024, the Court directed Plaintiff to respond to the Motion within 15 days. (Doc. No. 35). To date, Plaintiff has not responded to Defendant Everett's Motion and the time for doing so has passed.
Federal Rule of Civil Procedure 41(b) governs involuntary dismissal. Rule 41(b) reads:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.FED. R. CIV. P. 41(b).
In addition, Rules 37(b)(2)(A)(v) and 37(d)(3) of the Federal Rules of Civil Procedure provide that if a party fails to obey an order to provide discovery, or fails to serve answers to interrogatories, the Court may sanction the party by dismissing the action.
Here, Plaintiff failed to comply with the Courts' August 22, 2024 Order directing Plaintiff to respond to Defendant Everett's Motion to Compel. Plaintiff also failed to comply with the Court's September 9, 2024 Order directing Plaintiff to provide his discovery responses within 15 days, and October 16, 2024, Order directing Plaintiff to respond to Defendant Everett's Motion to Dismiss. Under these circumstances, the Court finds that Plaintiff's Complaint should be dismissed without prejudice.
IT IS, THEREFORE, RECOMMENDED that:
1. Defendant Everett's Motion to Dismiss (Doc. No. 33) be GRANTED;
2. Plaintiff's Complaint be DISMISSED without prejudice; and
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from an Order adopting these recommendations and the accompanying Judgment would not be taken in good faith.