Robertson v. Claiborne Parish et al

Filing 103

REPORT AND RECOMMENDATION re 1 Complaint and 13 and 20 Amended Complaints filed by Timothy Robertson: IT IS RECOMMENDED that all claims against Warden Sue Holiday, Lt. Trummell, Lt. Moore, Sgt. Alton Mathis, and Nurse Ford be dismissed with prejudice for failure to prosecute. Objections to R&R due by 2/8/2010. Signed by Magistrate Judge Mark Hornsby on 1/20/10. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

T IM O T H Y E. ROBERTSON VERSUS C L A IB O R N E PARISH DETENTION C E N T ER , ET AL

C I V I L ACTION NO. 07-cv-0529 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION T i m o t h y Robertson ("Plaintiff") filed this civil rights action against the Claiborne P a r i s h Detention Center and several corrections officials and healthcare workers employed a t the facility. The court directed Plaintiff to complete summons forms for each defendant. P l a i n ti f f submitted the papers, and the Marshal attempted to serve them at the addresses p r o v i d e d by Plaintiff. Several defendants were served, responded to the complaint, and have b e e n dismissed based on their motions for summary judgment. See Docs. 44, 56, 88, and 90. T h e court sua sponte dismissed claims against the Claiborne Parish Detention Center. Doc. 101. T h e only remaining defendants are Warden Sue Holiday, Lt. Trummell, Lt. Moore, Sgt. Alton Mathis, and Nurse Ford. Plaintiff submitted service papers for these five

defe ndan ts near the beginning of the litigation. The Marshal failed to make service on W a r d e n Holiday at the Claiborne Parish Detention Center. He noted that officers informed him that Holiday was then working at LaSalle Detention Center. It does not appear the M a r s h a l attempted to make service on Holiday at that facility. The summonses for the other

f o u r defendants were returned unexecuted with a note that the defendant was no longer e m p l o y ed at the Detention Center and that the M arsha l was unable to obtain a new address. T h e court recently issued an order (Doc. 101) in which it noted that it is obligated to a ss i s t Plaintiff in making service, but it is Plaintiff's obligation to provide the court with c o r r e c t service information. Plaintiff was granted approximately 30 days to file with the clerk of court a copy of his complaint, as amended, and two completed summonses for each o f the unserved defendants. Plaintiff was warned: "All claims against any unserved d e f e n d a n t may be dismissed for failure to prosecute if Plaintiff does not provide service p a p e r s for that defendant." The court went on to note that many of Plaintiff's key claims were recently dismissed b a s e d on a detailed Report and Recommendation that explained why the claims lacked merit u n d e r controlling law. The court explained that it was likely that most if not all of the claims a g a i n s t the unserved defendants are equally lacking in merit, so Plaintiff was encouraged to c o n s i d e r whether he had a valid claim against any unserved defendant before submitting s er vi ce papers and pursuing a likely meritless claim. Plain tiff's January 10 deadline to submit service papers has passed, and the clerk of court reports that no papers have been received from Plaintiff. Under these circumstances, a n d further considering Plaintiff's recent request to "discontinue" his case for an indefinite p e r i o d , the court finds that the best exercise of its discretion is to dismiss all remaining claims f o r failure to prosecute. The court may not proceed with the claims unless the named

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defe ndan ts are served, and Plaintiff has not taken the necessary steps to achieve service. F u r t h e rm o r e , as noted above, the court has explored the essential claims in detail and found them to lack merit. Dism issals of this sort are ordinarily made without prejudice, but the limitations p e r i o d will have expired with respect to these claims so that a dismissal without prejudice will effectively operate as a dismissal with prejudice. The more harsh remedy is nonetheless w a r r a n t e d considering the inability of the court to proceed with the apparently meritless c l a im s without service information and the cooperation of Plaintiff. A cc or di ng ly; I T IS RECOMMENDED that all claims against Warden Sue Holiday, Lt. Trummell, Lt. Moore, Sgt. Alton Mathis, and Nurse Ford be dismissed with prejudice for failure to p r o s e c u te . O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have fourteen (14) days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another pa rty's objections within seven (7) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing.

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A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 14 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 20th day of January, 201 0.

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