David v. Crow et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CIV-21-534-SLP
)
SCOTT CROW, et al., 	)
)
Defendants. 	)
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, brings this action
pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned
Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
For the following reasons, it is recommended the Complaint be dismissed without
prejudice due to Plaintiff’s failure to prosecute this action.
Plaintiff filed his initial Complaint in this 42 U.S.C. § 1983 civil rights
action on May 21, 2021, and a Second Amended Complaint on August 10, 2021.
Doc. Nos. 1, 23. On August 17, 2021, the Court entered an Order Requiring
Service and Special Report, directing Plaintiff to submit the necessary service
papers to the Clerk of Court for each Defendant within 21 days. Doc. No. 24 at 3.
Plaintiff failed to do so.
On October 29, 2021, this Court issued an Order directing Plaintiff to show
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cause within 10 days of the date of the Order why his claims should not be
dismissed without prejudice due to Plaintiff’s failure to comply with the Court’s
Order directing him to complete and return the necessary service papers Doc. No.
28. To date, Plaintiff has not responded.
Pursuant to Fed. R. Civ. P. 41(b), if a plaintiff “fails to prosecute or to
comply with these rules or a court order,” the Court may dismiss the action. The
Tenth Circuit “ha[s] consistently interpreted Rule 41(b) to permit courts to dismiss
actions sua sponte for a plaintiff’s failure to prosecute.” Huggins v. Supreme
Court of U.S., 480 F. App’x 915, 916-17 (10th Cir. 2012) (quotations omitted);
see also 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.” (quotations omitted)). If the dismissal is
without 	prejudice, 	the 	Court 	generally 	need 	not 	follow 	any 	“particular
procedures” in entering the dismissal order. AdvantEdge Bus. Grp., 552 F.3d at
1236; see also Robledo-Valdez v. Smelser, 593 F. App’x 771, 775 (10th Cir. 2014)
(explaining that a district court may, without abusing its powers, dismiss a case
without prejudice pursuant to Fed. R. Civ. P. 41(b) without attention to any
particular procedures).
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Plaintiff’s failure to provide the necessary service papers in order to
facilitate service on Defendants and/or comply with the Court’s orders leaves the
Court unable “to achieve [an] orderly and expeditious” resolution of this action.
Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power
of a court to dismiss suits for lack of prosecution on its own initiative). As outlined
above, the Court has provided Plaintiff sufficient notice of the possibility of
dismissal, as well as an additional response opportunity through objection to this
Supplemental Report and Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff’s action be
dismissed without prejudice based on his failure to prosecute this matter. Plaintiff
is advised of the right to file an objection to this Supplemental Report and
Recommendation with the Clerk of this Court by 	December 2 nd , 2021, in
accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely
object to this Supplemental Report and Recommendation would waive appellate
review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th
Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues
raised for the first time in objections to the magistrate judge’s recommendation
are deemed waived.”).
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This Supplemental Report and Recommendation disposes of all issues
referred to the undersigned Magistrate Judge in the captioned matter, and any
pending motion not specifically addressed herein is denied.
Dated this 	12 th day of November, 2021.
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