United States District Court, D. Minnesota
Prince Ja Quay El, Moorish American National, f/k/a Derrick Jacquay Roberson, Plaintiff,
Jen Pfeifer, Steele County Jail Employee; Sergeant Timothy Hassing, Owatonna Police Officer; Two Unknown Police Officers, City of Owatonna; Daniel A. McIntosh, County Attorney; and Unknown Police Officer, Defendants.
Ja Quay El, Attn: Derrick Roberson, pro se.
M. Hill, Jardine, Logan & O'Brien, PLLP, for Jen
Pfeifer and Daniel A. McIntosh.
REPORT AND RECOMMENDATION
BOWBEER, United States Magistrate Judge.
Prince Ja Quay El filed his Complaint for Violation of Civil
Rights Under 42 U.S.C. § 1983 in this matter on January
28, 2015. He also filed an Application to Proceed in District
Court Without Prepaying Fees or Costs (“IFP”),
which was granted on March 24, 2015 [Doc. No. 10]. In that
order, the Court ordered Plaintiff to submit USM-285 forms
within thirty days of entry of that order, providing complete
and correct addresses for each party to be served. The
Clerk's Office provided Plaintiff with those forms on
March 24, 2015 [Doc. No. 11].
prepared and returned USM-285 forms for individual Defendants
Sergeant Timothy Hassing (“Hassing”), Jen Pfeifer
(“Pfeifer”), and Daniel A. McIntosh
(“McIntosh”), along with Two Unknown Police
Officers, and a Summons was issued for each defendant on
April 10, 2015 [Doc. Nos. 12, 13]. The summons for Defendant
Hassing was returned unexecuted by USMS on April 23, 2015
[Doc. No. 15], with a notation that “subject retired in
2014.” On September 17, 2015, this Court issued an
order [Doc. No. 22], requiring Plaintiff to provide a new
USM-285 form for Defendant Hassing, providing his correct and
complete address, to the Clerk of Court on or before October
2, 2015. The order also warned Plaintiff that failure to
comply could result in a recommendation of dismissal of the
claims against Defendant Hassing for failure to prosecute.
December 9, 2015, the Court issued one last order requiring
Plaintiff to show cause why his claims against Defendant
Hassing in this case should not be dismissed without
prejudice for lack of prosecution [Doc. No. 23]. The Court
ordered Plaintiff to respond on or before January 6, 2016,
failing which the Court would recommend that his claims
against Hassing be dismissed without prejudice.
failed to respond to the December 9, 2015 order, and to this
date, Plaintiff has not submitted a correct and complete
address for Defendant Hassing. Accordingly, this Court now
recommends, in accordance with its prior orders, that claims
against Defendant Hassing be dismissed without prejudice
under Federal Rule of Civil Procedure 41(b) for failure to
prosecute. See Henderson v. Renaissance Grand Hotel,
267 F. App'x 496, 497 (8th Cir. 2008) (per curiam)
(“A district court has discretion to dismiss an action
under Rule 41(b) for a plaintiff's failure to prosecute,
or to comply with the Federal Rules of Civil Procedure or any
alternative, dismissal of claims against Defendant Hassing
without prejudice is warranted at this time under Rule 4(m),
which requires that “[i]f a defendant is not served
within 120 days after the complaint is filed, 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.” Nearly a year has passed since the
complaint in this action was filed. Plaintiff has not
effected service of process on Defendant Hassing in a manner
consistent with Rule 4, and he has not demonstrated good
cause for his failure to do so. Moreover, Plaintiff has been
repeatedly warned of the deficiencies in service and yet has
not taken steps to move this case forward with respect to
Defendant Hassing. Dismissal of claims against Hassing
without prejudice is therefore warranted at this time.
on all the files, records, and proceedings herein IT IS
HEREBY RECOMMENDED that claims against Sergeant Timothy
Hassing be DISMISSED WITHOUT PREJUDICE FOR FAILURE TO
PROSECUTE under Federal Rule of Civil Procedure 41(b) or, in
the alternative, under Federal Rule of Civil Procedure 4(m).
Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore, not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line
limits set forth in LR 72.2(c).
Advisement Dated: This Report and Recommendation will be
considered under advisement 14 days from the date of its
filing. If timely objections are filed, this Report and
Recommendation will be considered under advisement from the
earlier of: (1) 14 days ...