Ortiz v. Department of Corrections et al

Filing 54

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Luis R. Ortiz Objections to R&R due by 12/29/2008Signed by Magistrate Judge Malachy E. Mannion on 12/11/08. (Attachments: # 1 Notice)(ep, )

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UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF PENNSYLVANIA L U IS R. ORTIZ, P la in tiff v. N U R S E NANCY, SGT. LUCUS, a n d CO BENFIELD, D e fe n d a n ts . R E P O R T AND RECOMMENDATION T h e plaintiff, a former inmate at Camp Hill filed his complaint on F e b ru a ry 2, 2007, alleging violation of his constitutional rights. (Doc. No. 1.) O n March 27, 2008, this Court issued an order, (Doc. No. 50), granting p la in tiff's Motion to Amend [his] Complaint, (Doc. No. 46). The Court notes th a t since that time, this action has remained inactive on the Court's docket. A lth o u g h the Court granted plaintiff's motion to amend his complaint, plaintiff h a s yet to actually file an amended complaint. On May 30, 2008 the plaintiff file d a change of address with the Court. (Doc. No. 52.) This Court on November 12, 2008, after inaction from the plaintiff, set s c h e d u lin g deadlines, including instructing the plaintiff to file an amended c o m p la in t by December 5, 2008. (Doc. No. 53). The plaintiff has not complied w ith this order. T h e plaintiff's failure to comply with this Court's order constitutes a fa ilu re to prosecute this action and therefore this action is subject to dismissal : : : : : C IV IL ACTION NO. 1:07-0208 (C A L D W E L L , D.J.) (M A N N IO N , M.J.) p u rs u a n t to Fed. R. Civ. P. 41(b), which states in pertinent part: If the plaintiff fails to prosecute or to comply with these rules or a c o u rt order, a defendant may move to dismiss the action or any c la im against it. Unless the dismissal order states otherwise, a d is m is s a l under this subdivision (b) and any dismissal not under th is rule -- except one for lack of jurisdiction, improper venue, or fa ilu r e to join a party under Rule 19 -- operates as an a d ju d ic a tio n on the merits. T h e Third Circuit has long held that Rule 41(b) does not prohibit the sua s p o n te dismissal of actions against a defendant. As was said in Link v. Wabash R.R., where the plaintiff argued t h a t F.R.C.P. 41(b) by negative implication prohibits involuntary d is m is s a l except on motion by the defendant, no restriction on the d is tr ic t court's power should be implied: `The authority of a court to dismiss sua sponte for lack of prosecution has generally been c o n s id e r e d an `inherent power,' governed not by rule or statute b u t by the control necessarily vested in courts to manage their o w n affairs so as to achieve the orderly and expeditious d is p o s itio n of cases.' Kenney v. Cal. Tanker Co., 381 F.2d 775, 777 (3d Cir. 1967). In the instant action, the Court cannot properly control its docket, move th is action forward and properly protect the rights of all parties if the plaintiff fa ils to comply with orders issued by this Court. Moreover, such conduct s h o u ld not be condoned in light of the large prisoner dockets presently p e n d in g before the federal courts, all of which require prompt and thorough re v ie w . Finally, the plaintiff was advised in the Court's most recent order of N o v e m b e r 12, 2008 that "Should plaintiff fail to file his amended complaint 2 w ith in the required time period, or fail to follow the above mentioned p ro c e d u re s , a recommendation will be made to dismiss this action." (Doc. No. 5 3 ). The plaintiff's failure to comply with this Court's order, justifies dismissal o f his action. On the basis of the foregoing, IT IS RECOMMENDED THAT the instant a c tio n be DISMISSED pursuant to Fed. R. Civ. P. 41(b) and this Court's in h e re n t powers. s/ Malachy E. Mannion MALACHY E. MANNION U n ite d States Magistrate Judge D a te : December 11, 2008 O:\shared\REPORTS\2007 Reports\07-0208-04.wpd 3

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