Brown El v. Skeen et al

Filing 34

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to Prosecute [ECF No. 26 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against all remaining Defendants are DISMISSED, without prejudice. Signed by District Judge E. Richard Webber on 10/26/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH BROWN EL,
Plaintiff(s),
v.
MELVIN SKEEN, et al.,
Defendant(s).

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No. 4:15CV1089 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Second Motion to Dismiss for Failure to
Prosecute [ECF No. 33].
I.

BACKGROUND
Plaintiff Keith E. Brown El (“Plaintiff”) filed a complaint in this Court on July 13, 2015, and

an amended complaint on January 19, 2016, pursuant to 42 U.S.C. § 1983 alleging Defendants
Melvin Skeen and Terry Russell violated his First Amendment rights under the United States
Constitution. Plaintiff’s claims against Defendant Terry Russell were dismissed. Defendant Melvin
Skeen (“Defendant”) scheduled to take Plaintiff’s deposition on June 21, 2016. Defendant mailed
the notice of deposition to Plaintiff’s address of record. Plaintiff did not appear for the deposition
and did not call defense counsel. A record of non-appearance was made. A second deposition was
scheduled for September 13, 2016 and a notice of deposition was sent to Plaintiff. Plaintiff did not
appear at the deposition, and did not contact Defendant’s counsel. Counsel’s paralegal attempted to
contact Plaintiff but was unable to speak with him. Defendant’s counsel waited from 9:00 a.m. to
9:55 a.m. for Plaintiff to appear and he made no appearance.
II.

DISCUSSION

“A dismissal for failure to prosecute is proper when there has been ‘a clear record of delay or
contumacious conduct by the plaintiff.’” Garland v. Peebles, 1 F.3d 683, 686 (8th Cir. 1993)
(citation omitted). The Court must consider the nature of the conduct prompting the request for
dismissal, the adverse impact of the conduct on Defendants and the administration of justice, and the
availability of less severe options. Id. at 686-87. Disposition on the merits is favored and “the harsh
sanction of dismissal for failure to prosecute is ordinarily limited to cases involving egregious
conduct by particularly dilatory plaintiffs, after less dire alternatives have been tried without
success.” Peterson v. Archstone Communities, LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (quotations
and citations omitted). There should be evidence of bad faith, deliberate misconduct, or tactical
delay, when dismissing for failure to prosecute. Id.
This is Plaintiff’s second time failing to appear for a scheduled deposition. Defense counsel
attempted to contact him to no avail. He has not responded to any of Defendant’s filings with the
Court or to the Court’s orders. When Plaintiff missed the first deposition, the Court gave him the
opportunity to continue to pursue his case, but he has not taken that opportunity. Therefore, the
Court finds dismissal for failure to prosecute is appropriate.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for Failure to Prosecute
[ECF No. 26] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims against all remaining Defendants are
DISMISSED, without prejudice.
So Ordered this 26th day of October, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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