GAMBINA v. USA

Filing 11

ORDER OF DISMISSAL: Plaintiff's Complaint is dismissed for failure to prosecute pursuant to Rule 41(b). The Clerk is directed to enter judgment. Signed by Senior Judge Mary Ellen Coster Williams. (tsb) Service on parties made.

In the United States Court of Federal Claims
No. 20-238C
(Filed: January 7, 2021)

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RALPH STEPHEN GAMBINA,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER OF DISMISSAL
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WILLIAMS, Senior Judge.
On February 28, 2020, Plaintiff pro se Ralph Stephen Gambina, who is incarcerated in the
Buena Vista Correctional Facility in Colorado, filed a Complaint alleging a breach of an oral
implied-in-fact contract. Plaintiff claims that under this agreement the “Florence Max Facility
authorities” would move him to a “minimum security Colorado State prison, with programs and
opportunities to obtain work in society.” Compl. at 4. Plaintiff alleges the Federal Bureau of
Prisons, Florence Max Facility authorities and the Colorado Department of Corrections authorities
have failed to honor this contract. Id. Plaintiff alleges that he is currently incarcerated in a
“medium-close custody facility.” Id.
Plaintiff seeks a “declaration that the Federal Bureau of Prisons, Florence Max Facility
authorities, and the Colorado Department of Corrections authorities, must honor the contract” and
place Plaintiff in a “minimum security Colorado State prison, with programs and opportunities to
obtain work in society.” Id. at 8.
On March 20, 2020, Defendant filed a Motion to Dismiss Plaintiff’s Complaint for lack of
subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Defendant
argues that Plaintiff only “seeks equitable relief under the Declaratory Judgment Act,” which is
outside of this Court’s jurisdiction, and that Plaintiff fails to allege the elements of an implied-infact contract. ECF No. 7 at 1-3.
Plaintiff’s response to Defendant’s Motion to Dismiss was due by April 20, 2020. On July
20, 2020, the Court ordered Plaintiff to file a response to Defendant’s motion by August 10, 2020,

and warned Plaintiff that failure to comply with the Court’s order might lead to a dismissal of the
case. ECF No. 8. Plaintiff once again failed to file a response to Defendant’s motion by the Courtordered date. On November 5, 2020, the Court ordered Plaintiff to show cause why this action
should not be dismissed for failure to prosecute. ECF No. 10. Plaintiff’s response to the Show
Cause Order was due by November 25, 2020. Id. To date, Plaintiff has not filed a response to
Defendant’s Motion to Dismiss or this Court’s Show Cause Order. 1 Because Plaintiff has failed
to timely respond to Defendant’s motion or this Court’s Show Cause Order, the Court dismisses
this action for failure to prosecute.
“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because
of his failure to prosecute cannot seriously be doubted.” Link v. Wabash R.R. Co., 370 U.S. 626,
629 (1962); see Adkins v. United States, 816 F.2d 1580, 1581-82 (Fed. Cir. 1987) (upholding trial
court’s dismissal for failure to prosecute when plaintiffs repeatedly failed to timely comply with
court orders); Kadin Corp. v. United States, 782 F.2d 175, 175 (Fed. Cir. 1986). Rule 41(b)
explicitly states that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court
order, the court may dismiss on its own motion . . . .” RCFC 41(b). Thus, Rule 41(b) expressly
permits a sua sponte dismissal for failure to prosecute. “Rule 41(b) is a necessary tool to ensure
efficient docket management and prevent undue delays in litigation.” Barnes v. United States, 122
Fed. Cl. 581, 583 (2015).
Conclusion
Plaintiff’s Complaint is DISMISSED for failure to prosecute pursuant to Rule 41(b). 2
Plaintiff’s “Motion for Ruling under 28 U.S.C. § 1915A” is moot.

Mary Ellen Coster Williams___________

MARY ELLEN COSTER WILLIAMS
Senior Judge

1

Plaintiff’s only filing since his February 2020 Complaint is a September 2020 “Motion for
Ruling under 28 U.S.C. § 1915A” requesting that the Court “review the complaint and identify its
cognizable claims.” ECF No. 9 at 2.
2

Even if Plaintiff had timely prosecuted this action, Plaintiff has not established that this
Court possesses jurisdiction to hear his suit, as he requests only equitable relief unrelated to a claim
for monetary relief. See Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714, 71617 (Fed. Cir. 1998) (per curiam) (“The Court of Federal Claims has never been granted general
authority to issue declaratory judgments, and to hold that the Court of Federal Claims may issue a
declaratory judgment in this case, unrelated to any money claim pending before it, would
effectively override Congress’s decision not to make the Declaratory Judgment Act applicable to
the Court of Federal Claims.”).
2