Ray v. Taylor et al

Filing 26

ORDER adopting Report and Recommendations re 24 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 6/4/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RAYMOND ALEXANDER RAY,
Plaintiff,
v.
P.D. TAYLOR, et al.,
Defendants.

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Case No. CIV-17-772-D

ORDER
Before the Court is the Report and Recommendation (“Report”) of United States
Magistrate Judge Shon T. Erwin, to whom this 42 U.S.C. § 1983 action was referred for
initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B). Upon the filing of the
Complaint, Plaintiff was in the custody of the Oklahoma County Detention Center in
Oklahoma City, Oklahoma. [Doc. No. 1]. Appearing pro se and seeking leave to proceed
in forma pauperis, Plaintiff asserted claims based on the alleged violation of his
constitutional rights. On December 1, 2017, Plaintiff filed a Change of Address form,
indicating he was in the custody of the Natrona County Jail in Casper, Wyoming. [Doc.
No. 15].
On April 30, 2018, Judge Erwin filed his Report [Doc. No. 24], recommending that
Plaintiff’s action be dismissed without prejudice to refiling. Specifically, Judge Erwin
noted that Plaintiff had failed to submit the necessary paperwork required to effect service.
Judge Erwin had advised Plaintiff previously that his failure to submit the required service

paperwork and timely serve Defendants could result in the dismissal of this action. [Doc.
No. 21].
In his Report [Doc. No. 24], Judge Erwin advised Plaintiff of his right to object and
directed that any objection be filed on or before May 17, 2018. Judge Erwin further advised
Plaintiff that any failure to object would result in waiver of the right to appellate review.
The deadline for filing objections has passed. To date, Plaintiff has not filed objections
and has not sought an extension of time in which to do so. The Court notes that the record
reflects the copy of the Report mailed to Plaintiff was returned with the notation that
Plaintiff was no longer at the address provided to the Court. [Doc. No. 25].
Local Rule 5.4(a) expressly provides that a pro se litigant must file a change of
address form when he moves, and the responsibility of the Court and the opposing parties
is limited to mailing pleadings to a pro se litigant’s last known address. LCvR 5.4(a).
Material mailed by the Court to the last known address furnished by the pro se litigant is
deemed delivered. Id. See also FED. R. CIV. P. 5(b)(2)(C) (service complete upon mailing
to person’s last known address). To date, Plaintiff has not filed a change of address form
or otherwise informed the Court of his new address. See LCvR 5.4(a).
The Court agrees with Judge Erwin that Plaintiff’s failure to effect service warrants
dismissal of the action without prejudice. Nasious v. Two Unknown B.I.C.E. Agents at
Arapahoe County Justice Ctr., 492 F.3d 1158, 1161-1162 n. 2 (10th Cir. 2007) (Rule 41(b)
permits courts to dismiss actions sua sponte where a plaintiff fails to comply with the
Federal Rules of Civil Procedure or the Court’s orders); see also FED. R. CIV. P. 4(c)(3),
4(m); 28 U.S.C. § 1915(d). The Tenth Circuit has “consistently interpreted Rule 41(b) to
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permit courts to dismiss actions sua sponte for a plaintiff’s failure to prosecute.” Huggins
v. Supreme Court of U.S., 480 Fed. Appx. 915, 916-917 (10th Cir. May 16, 2012)
(unpublished)1 (internal quotation marks omitted), citing Olsen v. Mapes, 333 F.3d 1199,
1204, n. 3 (10th Cir. 2003); see also AdvantEdge Bus. Group v. Thomas E. Mestmaker &
Associates, Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (dismissal without prejudice
warranted as sanction for failure to prosecute or for failure to comply with local or federal
procedural rules); United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th
Cir. 2005) (dismissal appropriate where party disregards court orders and fails to proceed
as required by court rules).
Accordingly, Judge Erwin’s Report and Recommendation is ADOPTED as though
fully set forth herein. This action is dismissed without prejudice to the filing of a new
action. A judgment shall be issued forthwith.
IT IS SO ORDERED this 4th day of June 2018.

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 Unpublished

opinion cited pursuant to FED. R. APP. P. 32.1(a) and 10TH CIR. R. 32.1. 
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