Davis v. Ritchie et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BRADLEY MICHAEL DAVIS, 	)
)
Plaintiff, 	)
)
v. 	) Case No. CIV-23-229-JFH-JAR
)
JASON RITCHIE, Sheriff of 	)
Adair County, in his official 	)
and individual capacities; 	)
AUSTIN VAUGHN, in his official 	)
and individual capacities; and 	)
DAVID MAHLER, in his official 	)
and individual capacities, 	)
in his official capacity; 	)
)
Defendants. 	)
FINDINGS AND RECOMMENDATION
This matter comes before the Court on a review for Plaintiff’s
compliance with this Court’s Order to Show Cause entered February
1, 	2024. 	This 	case 	was 	referred 	to 	the 	undersigned 	by 	United
States District Judge John F. Heil, III on July 10, 2023.
Plaintiff initiated this case acting pro se on July 10, 2023.
Plaintiff alleges a civil rights violation under 42 U.S.C. § 1983
for excessive force against Defendants. 	Plaintiff requests
a 	(sic) 	order 	for 	investigation 	into 	this
complaint. 	Requesting 	a 	full 	physical 	and
phycological 	(sic) 	exam. 	Requesting 	a 	(sic)
investigation 	by 	the 	attorney 	generals 	(sic)
office 	into 	excessive 	force. 	Requesting
nominal, 	declaratory 	awards, 	attorneys 	fees,
filing 	fees, 	compensation 	of 	relief 	for 	pain
and 	suffering 	and 	punitive 	damages 	at:
$2,000,000 million.” 	(Docket Entry #1).
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Plaintiff 	was 	granted 	in 	forma 	pauperis 	status 	by 	Order
entered August 15, 2023. 	(Docket Entry #4). 	Plaintiff filed an
Amended Complaint with leave of Court on January 16, 2024, adding
claims 	for 	the 	failure 	to 	intervene 	and 	municipal 	liability.
(Docket Entry #36).
On 	December 	12, 	2023, 	this 	Court 	entered 	a 	Scheduling 	Order
to govern the actions of the parties in this litigation. 	(Docket
Entry 	#26). 	Among 	the 	deadlines 	set 	out 	in 	the 	Order 	was 	the
requirement that the parties exchange and file preliminary witness
and 	exhibit 	lists 	by 	January 	12, 	2024. 	Defendants 	filed 	their
lists in a timely manner. 	Plaintiff filed nothing.
By 	Order 	entered 	February 	1, 	2024, 	this 	Court 	found 	that
Plaintiff 	had 	not 	complied 	with 	the 	Scheduling 	Order 	entered 	in
this 	case. 	Specifically, 	the 	Court 	directed 	and 	informed
Plaintiff as follows in the Order:
Plaintiff shall show cause in writing no later
than 	FEBRUARY 	16, 	2024 	as 	to 	why 	this 	Court
should not enter Findings and a Recommendation
that this case be dismissed for the failure of
Plaintiff to comply with a Court Order and the
failure 	to 	timely 	prosecute 	the 	case. 	THE
FAILURE 	TO 	FILE 	THE 	SHOW 	CAUSE 	REPORT 	IN
WRITING BY THE DATE SPECIFIED SHALL RESULT IN
THE 	ENTRY 	OF 	FINDINGS 	AND 	A 	RECOMMENDATION
THAT THIS ACTION BE DISMISSED WITHOUT FURTHER
NOTICE OR HEARING.
(Docket Entry #9).
The Clerk was directed to mail the Order to Plaintiff at his
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last 	known 	address 	by 	return 	receipt. 	On 	February 	7, 	2023, 	the
Clerk filed the return receipt signed by Plaintiff indicating that
he 	received 	a 	copy 	of 	the 	Order. 	(Docket 	Entry 	#46). 	To 	date,
Plaintiff has neither 	shown cause in writing as to why 	this case
should 	not 	be 	dismissed 	nor 	filed 	his 	witness 	and 	exhibit 	lists.
Accordingly, 	Plaintiff 	has 	failed 	to 	prosecute 	this 	action 	and
failed to comply with this Court’s Order.
“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.” 	AdvantEdge 	Bus.
Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 	F.3d 1233, 1236
(10th Cir. 2009) quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th
Cir. 2002). 	When dismissing a case without prejudice, “a district
court 	may, 	without 	abusing 	its 	discretion, 	enter 	such 	an 	order
without 	attention 	to 	any 	particular 	procedures.” 	Id. 	quoting
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th
Cir. 2007). 	Since Plaintiff has failed to comply with this Court’s
Scheduling Order and failed to show cause why he did so, this Court
would recommend that the case be dismissed without prejudice.
IT IS THE RECOMMENDATION OF THE UNDERSIGNED that this action
be DISMISSED WITHOUT PREJUDICE to refiling based upon Plaintiff’s
failure 	to 	comply 	with 	this 	Court’s 	Scheduling 	Order 	and 	failure
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to comply with the Order to Show Cause.
The Clerk is directed to serve Plaintiff with a copy of these
Findings and Recommendation by first class mail, return receipt at
his address of record.
The parties are given fourteen (14) days from the date of the
service of these Findings and Recommendation to file any objections
with the Clerk of the Court. 	Any such objection shall be limited
to ten (10) pages in length. 	The failure to object to the Findings
and 	Recommendation 	within 	fourteen 	(14) 	days 	will 	preclude
appellate review of the findings made herein.
IT IS SO ORDERED this 20th day of February, 2024.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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