Ali v. Jones et al

Filing 24

ORDER ADOPTING 20 REPORT AND RECOMMENDATION; ORDER REFERRING CASE to Magistrate Judge Gary M. Purcell; Attorney C Robert Burton terminated., re 19 MOTION to Withdraw as Attorney; copy mailed to Murtaza Ali #09453062, POLLOCK-FCI MED, P O Box 4050, Pollock, LA 71467-4050. Signed by Honorable Robin J. Cauthron on 5/22/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MURTAZA ALI,
Plaintiff,
vs.
JUSTIN JONES, et al.,
Defendants.

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No. CIV-14-1174-C

ORDER
Plaintiff brought the present action pursuant to 42 U.S.C. § 1983, seeking
recompense for alleged violations of his constitutional rights. Consistent with the
provisions of 28 U.S.C. § 636(b)(1)(B), this action was referred to United States Magistrate
Judge Gary M. Purcell.

Judge Purcell entered a Supplemental Report and

Recommendation (“R&R”) on April 16, 2015, denying Plaintiff’s counsel’s request to
withdraw and recommending dismissal of this action for failure to achieve service within
the time limits set by Fed. R. Civ. P. 4(m). Plaintiff, acting pro se, timely objected.
In his Objection to the R&R, Plaintiff requests additional time to serve Defendants
and notes that despite repeated attempts, he has been unable to speak with his attorney
regarding service.
As Judge Purcell noted in the R&R, this case has been pending for a lengthy time
with no progress because of the failure to serve any Defendant. However, after review of
the Court file, it appears clear that the delay rests at the feet of Plaintiff’s counsel rather
than Plaintiff. The Court finds Plaintiff should be granted additional time to achieve

service. Dismissal of the case as recommended by Judge Purcell would unfairly penalize
Plaintiff for his counsel’s misconduct. Accordingly, Plaintiff will be granted 90 days to
obtain service on Defendants. However, Plaintiff is warned that no additional time will be
granted.
Plaintiff’s counsel’s conduct in this case warrants further discussion. Plaintiff’s
counsel, C. Robert Burton, entered his appearance in this case less than one month after it
was originally filed. Since that time counsel had a responsibility to his client and the Court
to move the case towards resolution. The Court file reflects no effort by counsel to fulfill
this duty. Indeed, the only action taken by counsel was to file an Amended Complaint (that
was clearly prepared by Plaintiff) and a Motion to Withdraw. Such conduct by counsel is
unacceptable. From counsel’s representation of Plaintiff in another action in this district
– Murtaza Ali v. Justin Jones, et al., CIV-11-505-C – and in the Northern District –
Murtaza Ali v. Walter Dinwiddie, et al., Case No. 07-CV-059-TRK-TLW – it would appear
that Plaintiff may be a difficult client to represent. Regardless of the difficulty in
representing Plaintiff, there is no excuse for the failure to timely serve Defendants.
Counsel is aware of the Defendants’ identities and presumably is aware of how to obtain
service on them. Put simply, counsel’s conduct falls below that expected of attorneys
appearing in this Court.
For the reasons set forth herein, the Court declines to adopt the R&R (Dkt. No. 20).
Plaintiff’s counsel will be permitted to withdraw. Plaintiff is granted an additional 90 days

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to obtain service on Defendants. Plaintiff’s Motion (Dkt. No. 21) is moot, in that Plaintiff,
when appearing pro se, will be mailed all documents filed (but if successor counsel enters
an appearance, only counsel will receive the notices of filing) and further objection to the
R&R is unnecessary. This matter is recommitted to Judge Purcell under the original order
of referral.
IT IS SO ORDERED this 22nd day of May, 2015.

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