David v. Crow et al

1
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. 	)
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, 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. 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
Plaintiff’s claims against Defendant Joe Allbaugh be dismissed without prejudice
due to Plaintiff’s failure to timely serve him.
On August 17, 2021, the Court entered an Order Requiring Service and
Special Report (“Order”) instructing Plaintiff to complete the necessary service
papers and furnish the same to the Court Clerk within twenty-one (21) days. Doc.
No. 24 at 3. Because Plaintiff is proceeding in forma pauperis, upon receipt of said
papers, the United States Marshal Service (“USMS”) would attempt to serve
Defendants on Plaintiff’s behalf. Id. at 3-4. The Court directed Plaintiff to complete
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 1 of 6

2
service of process no later than 90 days from the date of the Order. Id. at 4. Although
Plaintiff submitted said papers for 13 Defendants, Plaintiff failed to submit the
necessary service papers for Defendant Joe Allbaugh.
Federal Rule of Civil Procedure 4(m) provides that when a defendant is not
served with process and a copy of the complaint within the applicable deadline, “the
court - on motion or on its own after notice to the plaintiff - must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Even though Plaintiff appears
pro se, he is responsible for serving Defendants with a summons and a complaint.
Fed. R. Civ. P. 4(c)(1); DeCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993)
(recognizing that even though plaintiff was pro se he was “obligated to follow the
requirements of Fed. R. Civ. P. 4”).
On May 31, 2022, based on Plaintiff’s failure to submit service papers for
Defendant Allbaugh, the Court ordered Plaintiff to show cause within 10 days why
his claims against Defendant Allbaugh should be not dismissed. Doc. No. 81. On
June 13, 2022, Plaintiff responded by filing a “Motion to Show Cause for Failure to
Serve and Summons Defendant(s).” Doc. No. 86. Therein, he provided various
reasons for his failure to comply with the service requirements for Defendant
Allbaugh. He first indicated his failure was the result of limited time in the law
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 2 of 6

3
library. Id. at 2-3. In a subsequent Order, however, the Court noted Plaintiff was able
to submit service papers for the other Defendants. Plaintiff also complained that he
became aware Defendant Allbaugh is no longer employed by the Oklahoma
Department of Corrections (“ODOC”) and prison employees will not provide
Plaintiff with the current address. Id. at 3-4.
As the Court explained to Plaintiff in an Order issued on June 15, 2022,
several Defendants Plaintiff has named in this lawsuit are no longer employed by
ODOC. As Plaintiff is well aware, after he submitted service papers for those
Defendants, the Court ordered ODOC to provide the USMS with that Defendants’
last known address and the USMS has attempted service accordingly. Thus, Plaintiff
knows it is unnecessary for him to determine Defendant Allbaugh’s current address.
On June 15, 2022, the Court provided Plaintiff a final opportunity to show
cause within ten (10) days why Plaintiff’s claims against Defendant Allbaugh 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 and
to timely serve Defendant Allbaugh pursuant to Fed. R. Civ. P. 4(m). Doc. No. 87
(citing Constien v. United States, 628 F.3d 1207, 1210 (10th Cir. 2010) (recognizing
a court’s authority to dismiss an action without prejudice based on a plaintiff’s
failure to comply with Fed. R. Civ. P. 4(m)); Reed v. Bennett, 312 F.3d 1190, 1195
(10th Cir. 2002) (“A district court undoubtedly has discretion to sanction a party for
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 3 of 6

4
failing to prosecute or defend a case, or for failing to comply with local or federal
procedural rules.”)). The Court explained to Plaintiff that his failure to either show
reasonable cause and/or submit the necessary service papers within 10 days would
result in a recommendation to dismiss Plaintiff’s claims against Defendant Allbaugh.
Doc. No. 87 at 3-4. To date, Plaintiff has failed to do either.
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).
Plaintiff’s failure to serve Defendant Allbaugh and/or comply with the Court’s
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 4 of 6

5
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 regarding his claims against Defendant Allbaugh, as well
as 	an 	additional 	response 	opportunity 	through 	objection 	to 	this 	Report 	and
Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff’s claims against
Defendant Allbaugh be dismissed without prejudice based on his failure to timely
serve the same. Plaintiff is advised of the right to file an objection to this Third
Supplemental Report and Recommendation with the Clerk of this Court by
August 2 nd , 2022, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The
failure to timely object to this Third 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.”).
This Third Supplemental Report and Recommendation does not dispose of all
issues referred to the undersigned Magistrate Judge in the captioned matter, and any
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 5 of 6

6
pending motion not specifically addressed herein is denied.
Dated this 	12 th day of July, 2022.
Case 5:21-cv-00534-SLP Document 97 Filed 07/12/22 Page 6 of 6