Tucker v. Bailey et al

Filing 11

MEMORANDUM AND ORDER Dismissing 1 Complaint without Prejudice. So Ordered by Judge William E. Smith on 6/6/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
v.
)
)
NANCY BAILEY, et al.,
)
Defendants.
)
___________________________________)
DEAVEN E. TUCKER SR.,
Plaintiff,

C.A. No. 12-62-S

MEMORANDUM AND ORDER
DISMISSING COMPLAINT WITHOUT PREJUDICE
WILLIAM E. SMITH, United States District Judge.
Before the Court is a civil Complaint (ECF No. 1) filed by
Plaintiff Deaven E. Tucker Sr.

For the reasons stated below, the

Complaint is DISMISSED without prejudice for noncompliance with the
Court’s Memorandum and Order of January 10, 2013.
The following chronology is taken from the Court’s Second Show
Cause Order (ECF No. 9), issued on April 25, 2013:
On February 2, 2012, Plaintiff Deaven E. Tucker Sr.
filed a Complaint (ECF No. 1) in this Court pursuant to 42
U.S.C. § 1983 and related statutes.
Over eight months
later, on October 10, 2012, the Court issued a Show Cause
Order (ECF No. 2), ordering Plaintiff to show cause, in
writing, why the matter should not be dismissed for lack of
prosecution, specifically failure to make service upon
Defendants within 120 days after filing of the Complaint
and issuance of summons as required by Fed. R. Civ. P.
4(m).
The Show Cause Order further stated that if
Plaintiff did not show cause by November 12, 2012, the
matter would be dismissed without prejudice.
In response, Tucker filed a Motion to Amend Complaint
(ECF No. 3), a Motion for Jury Demand (ECF No. 4); a Motion
to Show Cause (ECF No. 5); which the court construed as a
response to the Show Cause Order; and a Motion for an

Extension of Time (ECF No. 6) to serve Defendants.
In a
Memorandum and Order dated January 10, 2012 [sic] (ECF No.
8), the Court found that Tucker had shown cause why the
matter should not be dismissed; granted the Motion to Amend
Complaint; denied the Motion for Jury Demand without
prejudice, noting that Tucker could include a jury demand
in his amended complaint; and granted in part and denied in
part the Motion for an Extension of Time.
The Court gave
specific instructions as to what Tucker should and should
not include in his amended complaint.
Tucker was directed to file his amended complaint
within thirty (30) days of the date of the Memorandum and
Order.
Therefore, his deadline for filing the amended
complaint was February 11, 2013.
Tucker was also ordered
to serve Defendants within sixty (60) days after the filing
of the amended complaint.
Tucker has not filed an amended complaint.
Thus, he
has not complied with the Memorandum and Order of January
10, 2013.
Accordingly, the Court again orders Tucker to show
cause, in writing, within thirty days (30) of the date of
this Order, i.e., on or before May 28, 2013, why the action
should not be dismissed.
(Second Show Cause Ord. 1-2.)
Tucker filed his response (“Second Resp.”) (ECF No. 10), as well
as an affidavit and exhibit in support thereof, to the Second Show
Cause Order on May 9, 2013.

In the affidavit, Tucker states that he

sent his amended complaint to the Court two months ago.

(Aff. 1.)

This statement lacks credence, however, because in his response to
the first Show Cause Order Tucker stated that he “wrote to this
honorable court on three seperate [sic] occassions [sic] for a copy
of the complaint & on the third time was given one, which plaintiff
received

on

September

28th

(First Resp. 2, ECF No. 5.)

2012

which

court

docket

would

show.”

The Court’s docket reflects no such

requests; nor does the docket indicate that an amended complaint was
received by the Court. 1
Moreover, Tucker states that he “hand wrote over one hundred
(100) pages” of an amended complaint, (Second Resp. 3), which clearly
would not comply with Federal Rule of Civil Procedure Rule 8(a)’s
requirement of “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

In its

Memorandum and Order of January 10, 2013, the Court quoted Rule 8(a),
(Mem.

&

Ord.

7

n.2,

Jan.

10,

2013),

and

gave

Tucker

specific

instructions which included, among others, a directive to “comply
with Rule 8(a) of the Federal Rules of Civil Procedure.” 2

(Id. 9-10.)

Accordingly, the Court finds that Tucker has failed to comply
with the Memorandum and Order of January 10, 2013.

1

As of the date of this Memorandum
complaint has not been filed with the Court.
2

and

His response to

Order,

an

amended

Rule 8(a) states in full:

(a) Claim for relief.
relief must contain:

A pleading that states a claim for

(1) a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.
Fed. R. Civ. P. 8(a).

the Second Show Cause Order is unpersuasive.

Therefore, Tucker’s

Complaint is hereby DISMISSED without prejudice. 3

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: June 6, 2013

3

Should Tucker choose to file another Complaint, for convenience
the Court repeats the instructions he was given in the Memorandum and
Order of January 10, 2013:
2) include the names of all Defendants in the caption;
3) be double-spaced;
4) set forth Plaintiff’s allegations in separately numbered
paragraphs;
5) comply with Rule 8(a) of the Federal Rules of Civil
Procedure and provide adequate notice to Defendants of the
nature and basis of Plaintiff’s claims;
6) state where and when the acts or omissions about which
Plaintiff complains occurred and who allegedly committed
those acts or omissions;
7) be a complete document in itself, meaning that it shall
be capable of being fully understood without having to read
other documents . . . ;
8) state plainly the basis for Plaintiff’s claim(s) against
each Defendant and the relief which Plaintiff is seeking.
(Mem. & Ord. 9-10, Jan. 10, 2013.)