MCKENNEY v. FARRINTON et al
ORDER granting without prejudice 20 Defendants' Motion to Dismiss; dismissing as moot 22 Defendants' Motion to Stay Dispositive Motion Deadline. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT W. MCKENNEY,
OFFICER FARRINTON, et al.
ORDER ON MOTION TO DISMISS
On December 19, 2016, Robert W. McKenney, then a prisoner at the
Androscoggin County Jail, filed a complaint in this Court pursuant to 42 U.S.C. §
1983 against Officer Farrinton, Officer Stone, Corporal Prosser, and Lieutenant
Feldman, seeking a preliminary injunction, an order transferring him to another
facility, and monetary damages. Compl. (ECF No. 1). In an attachment to his
Complaint, Mr. McKenney alleged that the corrections officers engaged in
misconduct, the details of which are not relevant to this order. Id. Attach. 1.
On March 2, 2017, the Magistrate Judge issued a recommended decision in
which he screened Mr. McKenney’s Complaint under 28 U.S.C. § 1915A(a).
Recommended Decision After Screening Compl. Pursuant to 28 U.S.C. §§ 1915(e),
1915A (ECF No. 7). The Magistrate Judge recommended that this Court dismiss all
claims except Mr. McKenney’s retaliation claim against Defendants Farrinton and
Feldman based on the denial of participation in a work program. Id. at 15. The
Magistrate Judge also recommended that the Court deny Mr. McKenney’s motion for
preliminary injunction. Id. On March 17, 2017, the Clerk’s Office received in return
mail a copy of the Magistrate Judge’s Order that the Clerk’s Office had sent to Mr.
McKenney’s listed address, indicating that the mail was “NOT DELIVERABLE AS
ADDRESSED/RELEASED/UTF.” Mail (ECF No. 8). Mr. McKenney did not object
to the recommended decision and on March 30, 2017, the Court affirmed the
Magistrate Judge’s recommended decision.
Order Affirming the Recommended
Decision of the Magistrate Judge (ECF No. 9) (Order).
On March 30, 2017, the Magistrate Judge issued an order, directing the Clerk’s
Office to prepare summonses to serve Defendants Farrinton and Feldman with the
Complaint. Order for Serv. (ECF No. 10). On April 17, 2017, the Order Affirming the
Recommended Decision was returned to the Court as undeliverable and on April 27,
2017, the Order for Service of Summons was also returned as undeliverable. Mail
(ECF No. 11); Mail (ECF No. 12). On May 1, 2017, both Defendants Farrinton and
Feldman waived service of process. Waiver of Serv. (ECF No. 13, 14). The Waiver of
Service of Process forms were also returned to the Court, this time on May 15, 2017
as undeliverable. Mail (ECF No. 18). Also on May 15, 2017, Defendants Farrinton
and Feldman answered the Complaint.
Defs.’ Thomas Farrington and Lane
Feldman’s Ans. and Affirmative Defenses to Pl.’s Compl. (ECF No. 16).
On May 16, 2017, the Court issued a Scheduling Order. Scheduling Order
(ECF No. 17). On June 1, 2017, the Scheduling Order was returned to the Court as
undeliverable. Mail (ECF No. 19).
On June 29, 2017, Defendants Farrinton and Feldman moved to dismiss the
Complaint. Defs.’ Mot. to Dismiss (ECF No. 20). The basis of the motion to dismiss
is that Mr. McKenney has failed to maintain contact with the Court. Id. at 1-2. Mr.
McKenney failed to respond to the Defendants’ motion to dismiss.
As just related, Mr. McKenney has failed to maintain contact with the Court
and the Clerk’s Office. Indeed the last communication that the Clerk’s Office received
from Mr. McKenney was on January 23, 2017, when he filed some documents with
the Court. See Indication by Prisoner, Additional Attachs. (ECF No. 4, 5). Since then
the Court has been unable to communicate with Mr. McKenney and Mr. McKenney
has not communicated with the Court.
As the Court noted in its March 30, 2017 Order Affirming the Recommended
Decision, the Clerk’s Office “has made a good faith effort to notify Mr. McKenney of a
significant decision in his case, but the Clerk’s Office has been unable to keep him
advised of an important matter because it does not know Mr. McKenney’s
whereabouts.” Order at 2. Since March 30, 2017, important matters have continued
to take place in Mr. McKenney’s case, but his whereabouts continues to be unknown.
In its March 30, 2017 Order, the Court also cited Carey v. King, 856 F.2d 1439 (9th
Cir. 1988) for the proposition that “[a] party, not the district court, bears the burden
of keeping the court apprised of any changes in his mailing address.” Id. at 1441.
Because Mr. McKenney has failed to keep this Court apprised of his
whereabouts and has failed to otherwise prosecute his claims, the Court GRANTS
the Defendants’ Motion to Dismiss (ECF No. 20) without prejudice.
DISMISSES without prejudice as moot the Defendants’ Motion to Stay Dispositive
Motion Deadline (ECF No. 22).
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 25th day of October, 2017
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