Opinion
24-1022-JWB-GEB
07-03-2024
CARL E. WATSON, I, Plaintiff, v. OPTUM HEADQUARTERS, HEATHER CIAFROCCO, CHRIST ZAETTA, SECRETARY OF UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendants.
REPORT AND RECOMMENDATION AND NOTICE
GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE
This matter concerns the Court's Notice and Order to Show Cause (ECF No. 16). Therein, the Court ordered Plaintiff to show cause in writing to the undersigned United States Magistrate Judge, on or before May 24, 2024, why she should not recommend the dismissal of Plaintiff's claims against Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs for failure to timely serve them and for lack of prosecution under Fed.R.Civ.P. 41(b). Plaintiff filed a Motion for Extension of Time to Respond to Order to Show Cause (“Motion”) (ECF No. 19). The Court granted in part and denied in part Plaintiff's Motion extending his deadline to respond up to and including June 28, 2024 (ECF No. 20). Despite asking for additional time, Plaintiff filed no response to the Order to Show Cause. Due to Plaintiff's failure to respond, and for the reasons stated below, the undersigned recommends dismissal of Plaintiff's claims against Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs without prejudice due to lack of prosecution pursuant to Fed.R.Civ.P. 41(b).
I. Notice
Within fourteen (14) days after a party is served with a copy of this Report and Recommendation, any party, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2), may file written objections to this Report and Recommendation. A party must file any objections within the fourteen-day period if the party wants to have appellate review of the proposed findings of fact, conclusions of law, or recommended disposition. II. Background
Pro se Plaintiff filed his Complaint alleging various violations of his civil rights under 28 U.S.C. §1343 and other claims on February 6, 2024 (Compl., ECF No. 1). Since that time, he has undertaken no measures to perfect service on Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs. His 90-day service deadline under Fed.R.Civ.P. 4(m) expired on May 6, 2024. To date no summons has been issued to Plaintiff for service on Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs. No return of service or other confirmation of service of process has been filed which would demonstrate service before or after the expiration of the 90-day deadline.
On May 8, 2024, the Court entered a Notice and Order to Show Cause (ECF No. 16). As set forth above, Plaintiff's extended deadline to show cause in writing to the undersigned United States Magistrate Judge why she should not recommend the dismissal of Plaintiff's claims against Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs for failure to timely serve them and for lack of prosecution under Fed.R.Civ.P. 41(b) ran on June 28, 2024. Plaintiff has neither filed a response to the Court's Order nor undertaken any effort to effect service these Defendants.
III. Recommendation of Dismissal without Prejudice
Plaintiff, as the initiator of this action, has an obligation to prosecute the case. Fed.R.Civ.P. 41(b) permits the Court to sua sponte dismiss an action if “the plaintiff fails to prosecute or to comply with these rules or a court order.” A court has discretion to dismiss an action for failure to prosecute. “When dismissing a case without prejudice, ‘a district court may, without abusing its discretion, enter such an order without attention to any particular procedures.'” Due to Plaintiff's failure in the approximately five months this case has been pending to undertake any efforts to perfect service on Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs, Plaintiff has failed to prosecute his claims against them. He has additionally failed to comply with the Notice and Order to Show Cause.
Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir. 2003).
AdvantageEdge Bus. Grp., LLC. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).
Id. (quoting Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Justice Ctr., 492 F.3d 1158,1162 (10th Cir. 2007)).
IT IS THEREFORE RECOMMENDED to the District Judge that Plaintiff's claims against Defendants Heather Ciafrocco, Christ Zaetta, and the Secretary of the United States Department of Veterans Affairs be dismissed without prejudice for lack of prosecution under Fed.R.Civ.P. 41(b).
IT IS ORDERED the Clerk's Office shall mail a copy of the Report and Recommendation and Notice to Carl E. Watson, 7130 W. Maple Street, Suite 230, Wichita, KS 67209, by regular mail.