Olson v. Cass County Sheriff et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Ricky A. Olson,
Plaintiff,
vs.
Cass County Sheriff, Three Deputy Sheriffs,
Cass County Medical Staff, and Nursing
Staff of Cass County,
Defendants.
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Case No. 3:23-cv-179
REPORT AND RECOMMENDATION
Ricky A. Olson, proceeding pro se and in forma pauperis, alleged several claims
under 42 U.S.C. § 1983. On January 30, 2024, after screening his complaint under 28
U.S.C. § 1915A, this court recommended that several claims be dismissed, (Doc. 43), and
the district judge adopted that recommendation on February 23, 2024, (Doc. 52). 1 The
court, however, permitted Olson to proceed with excessive force claims against “Three
Deputy Sheriffs” in their individual capacities but stated Olson had until February 29,
2024, to amend the complaint to identity each of those defendants by name. The court
cautioned that failure to amend the complaint could result in a recommendation that his
complaint be dismissed. (Doc. 43, p. 21). The court later extended the deadline to amend
the complaint to March 15, 2024. (Doc. 45). Since then, Olson has sent numerous letters
to the court, but he has not submitted an amended complaint or otherwise identified the
three deputies by name. (See Doc. 44, Docs. 46 to 50, Docs. 54-60).
1 Because no claims remain against defendants “Cass County Sheriff,” “Cass
County Medical Staff,” and “Nursing Staff of Cass County,” the Clerk is directed to
correct the docket to reflect those defendants were dismissed from the case as of
February 23, 2024, the date of the order adopting the recommendation.
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Olson cannot proceed with claims against unidentified defendants. Since he has
not identified any of the three deputies by name, none can be served with a summons
and the complaint, and the claims against the three deputies are subject to dismissal
without prejudice. See, e.g., Lewis v. Pulaski Cnty. Sheriff’s Off., No. 4:18-CV-00143-
KGB, 2022 WL 990351, at *1 n.2 (E.D. Ark. Mar. 31, 2022) (dismissing the plaintiff’s
claims against unidentified John Doe defendants after the plaintiff failed to move to
amend the complaint to identify the John Doe defendants and failed to timely serve
them pursuant to Federal Rule of Civil Procedure 4(m)); Basham v. Harrison, No. 4:19-
CV-4099, 2019 WL 5929275, at *3 (W.D. Ark. Nov. 12, 2019) (permitting the plaintiff
thirty days to identify a John Doe defendant before dismissing the claim against that
defendant without prejudice). Olson has been permitted sufficient time to amend the
complaint to identify the three deputies by name but has not done so.
Though Olson submitted several letters to the court, those letters generally
reiterated claims considered on initial screening of his complaint. Notably, Olson was
confined at Cass County Jail when he submitted the recent letters, and Cass County Jail
is where he alleges the excessive force occurred and where the three deputies are
employed. But his letters did not address any attempt to identify the three deputies by
name. “District courts have inherent power to dismiss sua sponte a case for failure to
prosecute.” Sterling v. United States, 985 F.2d 411, 412 (8th Cir. 1993) (citing Fed. R.
Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962)).
Because Olson did not amend his complaint by the March 15, 2024 deadline and
has not conveyed any attempt to identify the three deputies by name, this court
RECOMMENDS his complaint be dismissed in its entirety without prejudice. Because
any appeal would be frivolous and could not be taken in good faith, this court further
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RECOMMENDS the district judge find any appeal may not be taken in forma
pauperis.
Dated this 28th day of March, 2024.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
NOTICE OF RIGHT TO OBJECT2
Plaintiff may object to this Report and Recommendation by filing with the Clerk
of Court no later than April 11, 2024, a pleading specifically identifying those portions
of the Report and Recommendation to which objection is made and the basis of any
objection. Failure to object or to comply with this procedure may forfeit the right to seek
review in the Court of Appeals.
2 See Fed. R. Civ. P. 72(b); D.N.D. Civ. L.R. 72.1.
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