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Dudley v. Roy

United States District Court, D. Minnesota

December 10, 2014

Terrance Alfonso Dudley, Plaintiff,
v.
Tom Roy, Jeff Peterson, Jason Rudolph, Yolanda Galvan, Steve Hammer, Adam Gierok, Kobi Phillips, and Gene Olson, Defendants.

REPORT AND RECOMMENDATION

HILDY BOWBEER, Magistrate Judge.

This case is before the undersigned United States Magistrate Judge sua sponte, subsequent to the mandate issued by the United States Court of Appeals for the Eighth Circuit [Doc. No. 32]. For the reasons set forth below, the Court recommends that the case be dismissed for failure to prosecute.

I. BACKGROUND

Plaintiff Terrance Alfonso Dudley, a state prison inmate, [1] initiated this action pursuant to 42 U.S.C. § 1983 on December 10, 2013. (Compl. at 1 [Doc. No. 1].) He contemporaneously filed a Motion for Leave to Proceed In Forma Pauperis ("IFP application") [Doc. No. 2] and a Motion Requesting Lawyer Representation [Doc. No. 3].

In an Order dated December 27, 2013, the Honorable Jeanne J. Graham, United States Magistrate Judge, now retired, found Plaintiff's IFP application deficient because he did not provide a certified copy of his prison trust fund account statement as required by 28 U.S.C. § 1915(a)(2). (Order at 2-3, Dec. 27, 2013 [Doc. No. 4].) Judge Graham instructed Plaintiff to (1) file an amended IFP application and (2) pay the initial partial filing fee required by § 1915(b)(1). ( Id. at 3.) Plaintiff was advised that if he complied with these directives, his complaint would be screened pursuant to 28 U.S.C. § 1915A. ( Id. at 4.) If the complaint survived screening, Plaintiff would be granted IFP status and his case would proceed. ( Id. ) If the complaint contained no cognizable claims, however, the case would be dismissed summarily and the unpaid balance of the filing fee would have to be paid as prescribed by § 1915(b)(2). ( Id. )

On January 31, 2014, Plaintiff filed a Motion to Amend Complaint [Doc. No. 6] and an amended IFP application [Doc. No. 8], but did not pay the requisite filing fee [ see Order at 1, Feb. 10, 2014 [Doc. No. 10]). Judge Graham issued an order calculating the amount of the initial partial filing fee as $5.51 and informing Plaintiff that the action would not proceed until he paid the fee. (Order at 2, Feb. 10, 2014 [Doc. No. 10].) Judge Graham also advised Plaintiff that he was eligible to amend his complaint as a matter of course, without court permission, but he would have to file an entirely new, all-inclusive pleading that would replace his original complaint. ( Id. at 2-3.) Plaintiff was given until February 28, 2014, to file an amended complaint, and was warned that if he did not do so, he would waive his right to amend as a matter of course. ( Id. at 3.)

Plaintiff next filed a motion requesting (1) an extension of time to file an amended complaint, (2) copies of all papers filed in the case, and (3) a blank prisoner complaint form and notice of appeal form [Doc. No. 11]. He also paid the $5.51 filing fee. In an order dated April 24, 2014, Judge Graham denied Plaintiff's request for copies, but granted his request for additional time to file an amended complaint. As to the latter, Judge Graham noted:

Plaintiff's current pleading suffers from a host of critical defects. Given the substantial infirmities of Plaintiff's original complaint, it certainly would behoove him to amend.... Indeed, because of the substantial deficiencies of Plaintiff's original complaint, he will be required to file an amended complaint if he intends to continue to prosecute this action.

(Order at 2, Apr. 24, 2014 [Doc. No. 14].) Plaintiff was given explicit instructions for filing an amended complaint and was warned that if he did "not file an amended complaint by May 9, 2014, he will be deemed to have abandoned this action, and the Court will then recommend that this case be summarily dismissed without prejudice, pursuant to Fed.R.Civ.P. 41(b)." ( Id. at 3.) Judge Graham further advised that "[g]iven the prolonged history of this case, Plaintiff should not expect any further extension of the deadline for filing an amended complaint." ( Id. at 3-4.)

On April 30, 2014, Plaintiff filed a Motion Requesting Representation [Doc. No. 15], a Motion Requesting to Proceed on an Appeal [Doc. No. 16], and a letter to the Clerk of Court asking for notice of appeal forms [Doc. No. 17]. Judge Graham issued an order on June 18, 2014, detailing the procedural history of the case and noting that although the Clerk of Court had mailed an appeal packet to Plaintiff the same day it was requested, no appeal was filed. (Order at 3, June 18, 2014 [Doc. No. 19].) In Judge Graham's view, the available actions at that time were "to recommend that this action be dismissed for failure to prosecute pursuant to Rule 41(b), to screen Plaintiff's existing complaint pursuant to § 1915A, or to allow Plaintiff one last opportunity to file an amended complaint." ( Id. ) Judge Graham chose the third option:

Given Plaintiff's pro se status, and his ability and willingness to file other documents in this action (albeit not the amended complaint, apparently), the Court will not recommend dismissal for failure to prosecute at this time. Rather, the Court will order Plaintiff to show cause why his case should not be dismissed for lack of prosecution. By July 18, 2014, Plaintiff must show cause by either (1) filing an amended complaint or (2) informing the Court in writing that he intends to proceed on his current complaint. If Plaintiff does not file one of these documents by July 18, 2014, the Court will find that Plaintiff has abandoned this action and recommend that the case be summarily dismissed, without prejudice, pursuant to Federal Rule of Civil Procedure 41(b).

( Id. ) (emphasis in original).

Plaintiff did not comply with the order. Rather, he filed a Notice of Appeal [Doc. No. 20] and Motion for Permission to Appeal IFP [Doc. No. 21] on June 30, 2014. The Honorable David S. Doty, United States District Judge, granted Plaintiff's Motion for Permission to Appeal IFP on July 8, 2014 [Doc. No. 24]. Due to the retirement of Judge Graham, the case was reassigned to the undersigned United States Magistrate Judge on August 7, 2014 [Doc. No. 28].

The Eighth Circuit dismissed Plaintiff's appeal as premature on November 4, 2014 (Order at 1, Nov. 4, 2014 [Doc. No. 31]), and the formal mandate issued on November 26, 2014 (Mandate, Nov. 26, 2014 [Doc. No. 32]). Plaintiff has not filed any document attempting to show cause why his case should not be dismissed for lack of ...


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