Dudley, Sr. v. North Central Regional Office, KCCC/RRC et al

Filing 14

REPORT AND RECOMMENDATIONS re 11 Order to Show Cause. Signed by Magistrate Judge James P. O'Hara on 4/1/09.(ct)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF KANSAS G E N E E. DUDLEY, SR., P l a in tif f , v. N O R T H CENTRAL REGIONAL OFFICE, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

Case No. 09-2027-JWL

R E P O R T AND RECOMMENDATION

This case comes before the court1 on the order of the undersigned U.S. Magistrate Judge, James P. O'Hara, for the pro se plaintiff, Gene E. Dudley, Sr., to show cause why this case should not be dismissed for lack of prosecution under Fed. R. Civ. P. 41(b) (doc. 11). Plaintiff has filed a response to the order to show cause (doc. 12). Plaintiff filed his complaint on January 21, 2009 (doc. 1). On January 22, 2009, the undersigned granted plaintiff's motion for leave to proceed in forma pauperis (see doc. 3). Pursuant to the court's order, plaintiff provided the addresses of all named defendants so the Clerk of the Court could proceed with service of process (see docs. 4 & 5). The Clerk then issued summons and delivered them to the U.S. Marshal for service on the defendants. The summons were returned executed by certified mail on the defendants, North

On March 31, 2009, the presiding U.S. District Judge, Hon. John W. Lungstrum, re f erre d the instant order to show cause to the undersigned U.S. Magistrate Judge, James P. O 'H a ra (see doc. 13).
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C e n tra l Regional Office, Office of General Counsel, Director McNalley, CCM Racey, and K C C C /R R C Director Meagerman. All of the defendants except the Office of the General C o u n s e l were served on February 11, 2009. (see docs. 6 & 8-10). The Office of the General C o u n s e l was served on February 19, 2009 (see doc. 7). O n March 20, 2009, the undersigned entered an order for plaintiff to show cause why th is case should not be dismissed for lack of prosecution. The court stated that all of the d e f en d a n ts were served on February 11, 2009, but as noted above, the Office of the General C o u n se l was served on February 19, 2009. The court also stated that none of the defendants h a v e filed an answer to plaintiff's complaint and that no further action had been taken on this m a t te r . P lain tiff timely filed a response to the order to show cause stating that he recently s u b m itte d an amended complaint to the court and labored under the premise that the Federal B u re a u of Prison (agency of the United States Government) had sixty days to respond. P la in tif f notes that the period has not passed. Plaintiff was unsure if the United States A tto rn e y General's Office was to respond for the other defendants. Plaintiff argues that any in a c t io n s on his part were not meant to delay the proceedings or prejudice the defendants. P lain tiff notes that this case has only been pending for less than four months and that a d is m is s a l is not warranted. In itia lly, the court notes that the Clerk's office did not receive an amended complaint b y plaintiff. If plaintiff intended to file an amended complaint, he should immediately re-file

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it. Fed. R. Civ. P. 41(b) provides that a case may be dismissed if the plaintiff fails to p ro s e c u te it. Ordinarily, a defendant must serve its answer within twenty days of being s e rv e d with the summons and complaint.2 A defendant who is the United States, a United S ta te s agency, or a United States officer or employee sued only in an official capacity must s e rv e an answer within sixty days after service on the United States attorney.3 A defendant w h o is a United States officer or employee sued in an individual capacity for an act or o m is s io n occurring in connection with duties performed on the United States' behalf must s e rv e an answer within sixty days after service on the officer or employee or service on the U n ited States attorney, whichever is later.4 P la in tif f states that at least some of the defendants are employed through the Federal B u r e a u of Prisons, an agency of the United States government. It is unclear if plaintiff is s u in g the defendants in their official capacity or as individuals. Pursuant to Fed. R. Civ. P. 4 (i)(2 )-(3 ), the summons and the complaint must be served on a United States officer or e m p lo ye e and on the United States. Pursuant to Fed. R. Civ. P. 4(i)(1), service on the United S ta te s requires a copy of the summons and complaint be sent to the United States attorney f o r the district where the action is brought and to the Attorney General of the United States a t Washington, D.C. Although plaintiff provided both the address for the United States

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Fed. R. Civ. P. 12(a)(1)(A)(i). F ed . R. Civ. P. 12(a)(2). F ed . R. Civ. P. 12(a)(3). -3 -

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A tto rn e y for the District of Kansas and the United States Attorney General's Office (see doc. 5 ), it does not appear that the United States has been served in this case. The undersigned th e r e f o r e finds that the Clerk of the Court should serve the United States. B e c a u s e the United States attorney has not been served, the sixty-day period for d e f en d a n ts to answer has not started. Regardless, sixty days has not passed since the service o f the defendants. The undersigned therefore believes defendants should be given additional tim e to answer. The undersigned is of the opinion that the plaintiff has shown sufficient c a u se why this case should not be dismissed for lack of prosecution pursuant to Fed. R. Civ. P . 41(b). Accordingly, the undersigned respectfully recommends that Judge Lungstrum not d is m is s the instant case. P lain tiff is hereby informed that, within ten days after he is served with a copy of this re p o rt and recommendation, he may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 7 2 , file written objections to the report and recommendation. Plaintiff must file any o b je c tio n s within the ten-day period allowed if he wants to have appellate review of the p ro p o s e d findings of fact, conclusions of law, or the recommended disposition. If no o b jec tio n s are timely filed, no appellate review will be allowed by any court. C o p ie s of this order shall be served on the pro se plaintiff by regular and certified m a il. D a te d this 1st day of April, 2009, at Kansas City, Kansas. s/James P. O'Hara James P. O'Hara U . S. Magistrate Judge
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