Quay El v. Pfeifer et al

Filing 39

ORDER adopting in part Report and Recommendation 36 . Defendants Jen Pfeifer and Daniel A. McIntosh's Motion for Summary Judgment 27 is GRANTED IN PART AND DENIED IN PART in that this action is DISMISSED WITH PREJUDICE, but the Defendants' request for an award of costs is DENIED. (Written Opinion) Signed by Judge Joan N. Ericksen on January 30, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
PRINCE JA QUAY EL,
Plaintiff,
v.
JEN PFEIFER, Steele County Jail
Employee; SERGEANT TIMOTHY
HASSING, Owatonna Police Officer;
TWO UNKNOWN POLICE
OFFICERS, City of Owatonna;
DANIEL A. MACINTOSH, County
Attorney; UNKNOWN POLICE
OFFICER, March 2012 False Arrest;

Case No. 15-cv-183 (JNE/HB)
ORDER

Defendants.
This case is before the Court on a Report and Recommendation by the Honorable Hildy
Bowbeer, United States Magistrate Judge, dated December 30, 2016 [Dkt. No. 36] (“R&R”).
Judge Bowbeer recommends that the case be dismissed with prejudice on Defendants Jen Pfeifer
and Daniel A. McIntosh’s motion pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute [Dkt. No. 27]. See Defs.’ Br. 13-15, Dkt. No. 29. In the alternative, the magistrate
judge recommends that Defendants’ motion for summary judgment be granted. Plaintiff did not
object to the R&R, and the deadline for filing objections was two weeks ago. The Court has
nonetheless conducted a de novo review of the record. See D. Minn. LR 72.2(b). Based on that
review, the Court partially adopts the reasoning and conclusions of the R&R as stated below.
The Court agrees that dismissal with prejudice pursuant to Rule 41(b) is merited and
ADOPTS the portion of the R&R addressing that question (Sections I and III.A). The magistrate
judge’s conclusion that dismissal with prejudice is appropriate on the facts of this case is further
strengthened by the fact that Plaintiff, who did not oppose Defendants’ motion for dismissal with

prejudice or for summary judgment, also did not object to the magistrate judge’s
recommendation to grant that motion. Under other circumstances, a suspicion that Plaintiff’s
abstention in this case may relate in part to recent mail delivery problems, see Dkt. Nos. 34, 35,
& 38, might give the Court pause. Here, however, Plaintiff’s failure to pursue his own case
began much earlier. As the magistrate judge noted, Plaintiff has not filed anything since June
2015—a year and a half ago. In December 2015, the magistrate judge issued an Order to Show
Cause because Plaintiff had failed to comply with a September 17, 2015 order. Dkt. No. 23.
The docket shows no response by Plaintiff to the Order to Show Cause, although around that
time, Plaintiff apparently contacted Defendants’ counsel with a settlement offer. See R&R at 3.
In addition, at that time, the magistrate judge cautioned Plaintiff that it was his responsibility to
update his address with the Clerk of Court. Dkt. No. 23, at 3. In March 2016, before any actual
mail delivery issues arose, the Court again directed Plaintiff to update his address as necessary.
See Dkt. No. 26. This lengthy history of a demonstrated lack of diligence by Plaintiff on his own
behalf in pursuing his case merits its dismissal with prejudice. The case law cited in the R&R
and the facts of this case amply support this conclusion.
The Court has also considered alternatives to dismissing with prejudice. See Arnold v.
ADT Sec. Servs., Inc., 627 F.3d 716, 722 (8th Cir. 2010). Assuming that the Court were to adopt
the magistrate judge’s alternative recommendation, judgment would be entered against Plaintiff
and the action would be terminated anyway. Because the alternative choice appears equally fatal
to Plaintiff’s claims, the Court is satisfied that dismissal with prejudice is appropriate in this
regard as well. See Hunt v. City of Minneapolis, 203 F.3d 524, 528-29 (8th Cir. 2000).
The Court does not reach the alternative recommendation and therefore does not adopt
that portion of the R&R (Sections III.B – III.D).

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Finally, Defendants’ motion requested an award of costs and disbursements, although
their brief made no mention of it. Dkt. No. 27. Defendants are presumptively entitled to an
award of their costs under Federal Rule of Civil Procedure 54(d)(1) as prevailing parties in this
action “[u]nless . . . a court order provides otherwise . . . .” Cf. Schwarz v. Folloder, 767 F.2d
125, 130-31 (5th Cir. 1985) (finding that a defendant was a prevailing party where claims were
dismissed voluntarily with prejudice). “[T]he decision whether to award costs ultimately lies
within the sound discretion of the district court.” Lochridge v. Lindsey Mgmt. Co., Inc., 824 F.3d
780, 783 (8th Cir. 2016) (quoting Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013)).
Under the circumstances of this case, including the fact that the action is already subject to the
“extreme sanction” of being involuntarily dismissed and that Plaintiff was granted in forma
pauperis status (although this fact by itself does not insulate him from a costs award against
him), the Court in its discretion declines to award costs. Hunt, 203 F.3d at 527; cf. Greaser v.
Missouri Dep’t of Corr., 145 F.3d 979, 985 (8th Cir. 1998). In so doing, the Court declines to
accept the recommendation of the magistrate judge on this point.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants Jen Pfeifer and Daniel A. McIntosh’s Motion for Summary Judgment
[Dkt. No. 27] is GRANTED IN PART AND DENIED IN PART in that this action is
DISMISSED WITH PREJUDICE, but the Defendants’ request for an award of costs
is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 30, 2017

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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