Deleon-Flores v. United States of America
Filing
27
MEMORANDUM OPINION & ORDER: 1. Plt's 1 Complaint is DISMISSED WITHOUT PREJUDICE; 2. USA's 22 MOTION to Dismiss OR IN THE ALTERNATIVE MOTION for Summary Judgment is DENIED AS MOOT; 3. Plt's 26 MOTION for Leave to reply to Dft's Answer is DENIED AS MOOT; 4. Court will enter an appropriate jgm; 5. this matter is DISMISSED and STRICKEN from the active docket of the Court. Signed by Judge Joseph M. Hood on 10/28/2015.(STC)cc: COR,Plt
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JESUS DELEON-FLORES,
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Plaintiff,
V.
UNITED STATES OF AMERICA,
Defendant.
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Civil No. 5:14-376-JMH
MEMORANDUM OPINION
AND ORDER
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Jesus Deleon-Flores is a federal inmate confined at CCA/EDEN
Detention Center in Eden, Texas.
On September 19, 2014, Deleon-
Flores filed a pro se complaint under the Federal Tort Claims Act
(“FTCA”),
28
U.S.C.
§§
1346(b),
2671-2680,
alleging
medical
negligence in the performance of knee replacement surgery. [R. 1]
Following service of process, on July 7, 2015, the United
States moved to dismiss the complaint, or alternatively for summary
judgment,
arguing
that
the
Court
lacked
subject
matter
jurisdiction over Deleon-Flores’s FTCA claim because he failed to
properly
exhaust
his
administrative
remedies
and
because
the
physicians who provided the medical care at issue are independent
contractors, not federal employees; because Deleon-Flores chose to
go forward with the surgery after being adequately advised of the
risks; and because the plaintiff failed to support his claim that
the medical care provided fell below the applicable standard of
care with expert testimony.
[R. 24]
Under the Court’s Local Rules, “[a] party opposing a motion
must file a response memorandum within twenty-one (21) days of
service of the motion.”
LR 7.1(c).
therefore due by July 28, 2015.
Deleon-Flores’s response was
But on July 27, 2015, the Court
upon its own motion extended the time for the plaintiff to respond,
directing him to file his response to the motion within fourteen
(14) days of the Order.
[R. 25]
Deleon-Flores was therefore
required to respond on or before August 10, 2015.
Deleon-Flores failed to file a timely response.
Instead,
three weeks later on September 1, 2015, plaintiff filed a motion
requesting an additional thirty days to file a response.
[R. 26]
If the Court had granted that motion, the plaintiff’s response
would have been due on October 1, 2015.
However, even that date
has
any
long
plaintiff.
since
come
and
gone
without
response
from
the
All told, nearly ninety days have passed since the
United States filed its dispositive motion, and Deleon-Flores has
yet to file any substantive response to the motion.
Where the plaintiff has failed to comply with orders of the
Court or to timely respond to a dispositive motion, Rule 41(b) of
the Federal Rules of Civil Procedure confers on the Court the
authority to dismiss the action for failure to prosecute the action
or to comply with an order of the court.
Schafer v. City of
Defiance Police Dept., 529 F.3d 731, 736 (6th Cir. 2008).
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Here,
Deleon-Flores has not filed any response to the United States’
motion for summary judgment in the three months after it was filed,
nor within the extended time period granted to him upon the Court’s
own motion, nor even within the additional period sought by the
plaintiff himself.
The Court will therefore dismiss this action
without prejudice pursuant to Rule 41(b) for failure to prosecute
and for failure to comply with an Order of the Court.
Accordingly, IT IS ORDERED that:
1.
Plaintiff’s
complaint
[R.
1]
is
DISMISSED
WITHOUT
PREJUDICE.
2.
The
United
States’
Motion
to
Dismiss,
or
in
the
alternative, for Summary Judgment [R. 22] is DENIED AS MOOT.
3.
Plaintiff’s “Motion for Leave to Reply to Defendant’s
Answer” [R. 26] is DENIED AS MOOT.
4.
The Court will enter an appropriate judgment.
5.
This matter is DISMISSED and STRICKEN from the active
docket of the Court.
This the 28th day of October, 2015.
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