Pennington et al v. Saint Francis Community Services et al

Filing 9

MEMORANDUM AND ORDER denying 5 Motion to Appoint Counsel. This document also serves as the RECOMMENDATION OF DISMISSAL of Plaintiffs' Complaint to the District Court. The document is included in the Court's docketing system as two entrie s for administrative/tracking purposes. Signed by Magistrate Judge Gwynne E. Birzer on 2/6/18. Mailed to pro se party Bruce Clement Pennington, Jr. by certified mail at both addresses listed in the Order; mailed to pro se party Vanessa Kay Oller at 9435 W. Central, Apt. 2; Wichita, Kansas 67212 by certified mail. Certified Tracking Numbers: 70123050000111903634; 70123050000111903641. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRUCE CLEMENT PENNINGTON, JR. and
VANESSA KAY OLLER,
as parents of minor S. G. O.,
Plaintiffs,
v.
SAINT FRANCIS COMMUNITY SERVICES,
et al.,
Defendants.

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ORDER
and
REPORT AND RECOMMENDATION
This matter is before the Court on plaintiff Bruce Clement Pennington, Jr.’s
Motion for Leave to Proceed Without Payment of Fees (ECF No. 4, sealed) and his
Motion for Appointment of Counsel (ECF No. 5). After a review of the docket in this
matter, the undersigned Magistrate Judge DENIES the motion for appointment of
counsel (ECF No. 5); and RECOMMENDS DENIAL of the motion for in forma
pauperis (ECF No. 4) and RECOMMENDS dismissal pursuant to 28 U.S.C. §
636(b)(1)(B).

Background
Plaintiffs filed their Complaint, acting pro se, on November 7, 2017. The matter
was before the Court on plaintiff Bruce Clement Pennington, Jr.’s Motion for Leave to
Proceed Without Payment of Fees and attached affidavit of financial resources (ECF No.

4, sealed) and his Motion for Appointment of Counsel (ECF No. 5). After review of
those pleadings, the Court determined it required additional information in order to
decide the motions.
On November 21, 2017, the Court sent a letter to Plaintiffs outlining three specific
deficiencies in their filings. First, only Mr. Pennington, and not Ms. Oller, filed a motion
for leave to proceed without payment of fees. However, a separate motion and affidavit
is necessary for each named plaintiff wishing to proceed without payment of fees, in
order for the Court to properly consider the request. Second, Mr. Pennington’s financial
affidavit was incomplete, and did not clearly outline his current income. Finally, Mr.
Pennington was the sole named Plaintiff who submitted a motion for appointment of
counsel, and his motion was incomplete. Mr. Pennington did not disclose those attorneys
with whom he has consulted, as required. (See Notice and Order to Show Cause, ECF
No. 7.)
Along with the November 21 letter, the Court mailed forms to Plaintiffs for their
use, and encouraged them to utilize the Court website. The letter informed Plaintiffs that
failure to supplement their filings may result in negative consequences to their case, up to
and including a recommendation of dismissal. The Court entered an Order establishing a
deadline of December 15, 2017, for Plaintiffs to supplement their previous filings (Order,
ECF No. 6). Plaintiffs did not respond.
On January 10, 2018, the undersigned U.S. Magistrate Judge ordered Plaintiffs to
show cause, on or before January 26, 2018, why she should not recommend dismissal of
Plaintiffs’ claims based upon their failure to supplement as ordered. The Notice and
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Order to Show Cause (ECF No. 7) was mailed to Plaintiffs by certified mail, return
receipt delivery, at Plaintiffs’ last known address. The Notice was returned to the Court
as “Return to Sender; Unclaimed; Unable to Forward.” (ECF No. 8.) This brings the
Court to the current posture of the case, which has shown no action by either Plaintiff
since November 16, 2017.

Discussion
The Plaintiffs’ mailing address, reflected on the electronic docket and utilized by
the Court, was provided to the clerk’s office at filing and is the address stated on the
Complaint (ECF No. 1, at 1) and the Civil Cover Sheet (ECF No. 2). Local Rules require
pro se parties to “notify the clerk in writing of any change of address or telephone
number.” D. Kan. Rule 5.1(c)(3). “Any notice mailed to the last address of record of an
attorney or pro se party is sufficient notice.” (Id.)
Although a different address is reflected for Mr. Pennington on an envelope in
which the Complaint was mailed, as well as on his Affidavit of Financial Status (ECF No
4-1, sealed), the Complaint and Cover Sheet clearly indicate the parties’ desire to “use”
the following address as the “primary mail contact”: 9435 W. Central, Apt. 2; Wichita,
Kansas 67212 (see notation on Civil Cover Sheet, ECF No. 2). As the Tenth Circuit
Court of Appeals has noted, “it would be unreasonable to require courts to wade through
a party’s file in order to determine the most recent or most likely address at which to

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contact the party.”1

Service of the prior Court orders, then, was accomplished by

“mailing it to [plaintiffs’] last known address—in which event service [was] complete
upon mailing.”2
In light of Plaintiffs’ failure to provide adequate information by which to consider
the motions, the undersigned DENIES Plaintiff Bruce Clement Pennington, Jr.’s Motion
for Appointment of Counsel (ECF No. 5), and RECOMMENDS that Plaintiff Bruce
Clement Pennington, Jr.’s Motion to Proceed In Forma Pauperis (ECF No. 4) be
DENIED.
Additionally, because Plaintiffs have failed to comply with the Court’s orders,
and/or failed to provide the Court with a current address, this Court RECOMMENDS
this matter be DISMISSED without prejudice. “A court has the inherent power to
dismiss an action for failure to prosecute in order to ensure the orderly and expeditious
resolution of cases.”3 And, although the “pro se plaintiff[s] must be afforded a liberal
reading of [their] pleadings, [they] must comply with the procedural rules and statutes
that govern all litigants.”4 Because Plaintiffs have failed to prosecute this matter, and/or
failed to supply a current address, this case may be dismissed.5

1

See ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014)
(citing Theede v. U.S. Dept. of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999) (holding pro se
plaintiff’s objections to magistrate’s report and recommendation untimely and not appealable
where report was mailed to plaintiff’s last known address, even though that was not actually his
current address).
2
Id. (citing Fed. R. Civ. P. 5(b)(2)(C)).
3
Pollock v. Kansas Dep’t of Corr., No. 13-3051-SAC (D. Kan. July 22, 2013) (citing Link v.
Wabash Railroad Co., 370 U.S. 626, 630-31 (1962)).
4
Vianez v. FNU LNU, No. 14-3018-SAC (D. Kan. Mar. 26, 2014) (citing Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); also citing Vianez v. District
Court of Phoenix, 2013 WL 6511668 (D. Ariz., Dec. 12, 2013)(addressing pleadings filed after

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IT IS THEREFORE RECOMMENDED that this matter be dismissed without
prejudice due to Plaintiffs’ failure to supplement the record as directed.

IT IS ORDERED that a copy of this recommendation shall be mailed to Plaintiffs
by certified mail. This mailing shall be sent to the address listed on the Complaint and
Cover Sheet: 9435 W. Central, Apt. 2; Wichita, Kansas 67212; as well as to the address
contained on the envelope attached to the Complaint: Bruce Pennington, Butler County
Jail, 701 S. Stone Rd.; El Dorado, Kansas 67042. Pursuant to 28 U.S.C. § 636(b)(1)(C)
and Fed. R. Civ. P. 72(b), Plaintiffs may file a written objection to the proposed findings
and recommendations with the clerk of the district court within fourteen (14) days after
being served with a copy of this report and recommendation. Failure to make a timely
objection waives appellate review of both factual and legal questions.6

IT IS SO ORDERED.
Dated at Wichita, Kansas this 6th day of February 2018.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

dismissal of plaintiff’s complaint due to his failure to submit the filing fee or file an application
to proceed in forma pauperis and due to his failure to submit an amended complaint on a form
approved by the court).
5
Pollock v. Kansas Dep’t of Corr., No. 13-3051-SAC (D. Kan. July 22, 2013) (dismissing the
case for “plaintiff’s failure to supply a current address or otherwise prosecute” the case).
6
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).

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