ADAMS v. ADAMS et al

Filing 5

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by JUSTAN ADAMS. Objections to R&R due by 7/13/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JUSTAN ADAMS,
Plaintiff
v.
RANDY ADAMS, et al.,
Defendants

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1:17-cv-00200-GZS

RECOMMENDED DECISION
BASED ON PLAINTIFF’S FAILURE TO PROSECUTE
On June 5, 2017, Plaintiff filed a complaint and an Application to Proceed In Forma
Pauperis. (ECF Nos. 1, 2.) Because Plaintiff had not provided the required information for
the Court to rule on his Application to proceed In Forma Pauperis, on June 7, 2017, the
Court ordered Plaintiff to pay the filing fee or provide an amended Application to Proceed In
Forma Pauperis on or before June 28, 2017. (ECF No. 3.) Through the order, the Court
informed Plaintiff that a failure to comply with the order could result in the dismissal of the
matter. On June 27, 2017, the Court’s mailing of its Order was returned marked by the U.S.
Postal Service: “Return to Sender Attempted – Not Known Unable to Forward.” Plaintiff has
not responded to the Court’s June 7, 2017, Order, and has not otherwise communicated with
the Court. As explained below, I recommend the Court dismiss Plaintiff’s complaint without
prejudice.
Discussion
“A district court, as part of its inherent power to manage its own docket, may dismiss

a case sua sponte for any of the reasons prescribed in Fed. R. Civ. P. 41(b).” CintronLorenzo v. Dep’t de Asumtos del Consumidor, 312 F.3d 522, 526 (1st Cir. 2002) (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 629 – 31 (1962)). Federal Rule of Civil Procedure 41(b)
authorizes a court to dismiss an action for a party’s failure to prosecute and failure to comply
with the court’s orders. Here, Plaintiff has failed to comply with the Court’s June 7, 2017,
Order that required Plaintiff to pay the filing fee or file an amended application to proceed in
forma pauperis. (ECF No. 3.) Plaintiff, therefore, has not only failed to comply with a court
order, but he has also failed to satisfy a necessary prerequisite to the filing of an action in this
court (i.e., pay the filing fee or file a complete application to proceed in forma pauperis). In
other words, Plaintiff has failed to take the measures necessary to prosecute his claim.
The fact that Plaintiff might have relocated and not received the Court’s order does
not absolve him of his obligation to prosecute this action. Parties to litigation have a duty to
inquire periodically regarding the status of the litigation and to keep the court informed of
their current address and contact information. United States v. Guerrero, 302 Fed. App’x
769, 771 (10th Cir. 2008); Lewis v. Hardy, 248 Fed. App’x 589, 593 (5th Cir. 2007) (per
curiam); Carvel v. Durst, No. 1:09-cv-06733, 2014 WL 787829, at *1 n.5 (S.D.N.Y. Feb. 25,
2014); Am. Arbitration Ass’n, Inc. v. Defonseca, No. 1:93-cv-02424, 1997 WL 102495, at *2
(S.D.N.Y. Mar. 6, 1997) (“[A] litigant’s obligation to promptly inform the Court and the
opposing party of an address change is a matter of common sense, not legal sophistication.”);
see also Information for Pro Se Parties, Responsibilities of the Pro Se Litigant ¶ 6: “You
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must keep the Court and the other party advised of any change of your address or telephone
number. … Failing to do so may result in the imposition of sanctions, which could include
the dismissal of your case.” (United States District Court, District of Maine handout for pro
se litigants, also available online).
Given Plaintiff’s failure to comply with the Court’s order, his failure otherwise to
prosecute the action, and his lack of communication with the Court following the filing of the
complaint and Application for Leave to Proceed In Forma Pauperis on June 5, 2017 (ECF
Nos. 1 and 2), dismissal is warranted. Because Plaintiff evidently did not receive the Order
regarding the need to pay the filing fee or file an amended application to proceed in forma
pauperis, and because the complaint has not been served on the defendants, dismissal without
prejudice is appropriate.
Conclusion
Based on the foregoing analysis, I recommend the Court dismiss Plaintiff’s complaint
without prejudice.

NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen (14)
days of being served with a copy thereof. A responsive memorandum shall be
filed within fourteen (14) days after the filing of the objection.

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Failure to file a timely objection shall constitute a waiver of the right to
de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 29th day of June, 2017.

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