Tucker v. Bailey et al

Filing 18

MEMORANDUM AND ORDER denying 15 Motion to Reopen Case; denying 16 Motion to Amend/Correct. So Ordered by Chief Judge William E. Smith on 3/26/14. (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
DENYING MOTIONS TO REOPEN CASE AND AMEND COMPLAINT

WILLIAM E. SMITH, Chief Judge.
Before the Court are two motions filed by Plaintiff
Deaven E. Tucker Sr., a motion to reopen his case (ECF No.
15), a civil rights Complaint which the Court dismissed
without prejudice on June 6, 2013, and a motion for leave
to amend that Complaint (ECF No. 16).

For the reasons

stated below, both motions are DENIED.
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 [First Response]; 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.
(Second Show Cause Ord. 1-2 (emphasis in original).)
Tucker

did

not

February 11, 2013.

file

an

amended

complaint

by

Thus, he failed to comply with the

Memorandum and Order of January 10, 2013.

The Court

subsequently issued a Second Show Cause Order on April
25,

2013.

Tucker

was

ordered

to

show

cause,

in

writing, on or before May 28, 2013, why the action
2

should not be dismissed.
No.

10)

(Second

Tucker filed a response (ECF

Response),

with

an

affidavit

and

exhibit in support thereof, to the Second Show Cause
Order

on

response

May

9,

2013.

unpersuasive.

The
In

a

Court

found

Memorandum

Tucker’s
and

Order

issued on June 6, 2013 (ECF No. 11), the Court stated:
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 2012 which court
docket would show.” (First Resp. 2, ECF No. 5.)
The Court’s docket reflects no such requests; nor
does
the
docket
indicate
that
an
amended
complaint was received by the Court.
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.” (Id. 9-10.)
(Mem. & Ord. 2-3, June 6, 2013 (alterations in original)
(footnotes omitted).)

The Court found that Tucker again

failed to comply with the Memorandum and Order of January
3

10,

2013.

It

therefore

dismissed

without prejudice on June 6, 1913.

Tucker’s

Complaint

(Id. at 4.)

Thereafter, Tucker filed the instant motions to reopen
and amend his Complaint, along with another affidavit (ECF
No.

17)

(Second

Aff.).

The

Court

briefly

addresses

Tucker’s arguments.
Tucker “argues that he has filed all motions, orders &
or memorandums, therefore, does not know why this honorable
court has not received them.
motions

Tucker

(Docket.)

filed,

(Mot. to Reopen 1.)

however,

were

not

timely

Any
filed.

He reiterates this argument in the affidavit

filed in support of the instant motions.

(Second Aff. 1.)

Tucker states that he did comply with the Court’s orders,
but that he was following the rules of the District Court
of

Hartford

Connecticut
legal

regarding
Department

work,”

(id.),

service
of

and

appears

Corrections

presumably

his

to

for

the

amended

blame

the

“missing
complaint.

However, it is Tucker’s responsibility to ensure that he is
following the correct court rules 1 and that
complaint actually reaches the Court.

his amended

Citing Gomez v. USAA

Fed. Savs. Bank, 171 F.3d 794 (2d Cir. 1999), among other

1

The Local Rules for the District of Rhode Island are
on the Court’s website.
4

cases, Tucker argues that the Court should not dismiss a
pro se complaint without granting leave to amend “at least
once,” id. at 795, and that “justice requires amendment of
the complaint in this case,”
overlooks

the

fact

that

amend the Complaint.
8.)

he

(Mot. to Amend 4).
was

given

an

Tucker

opportunity

to

(Mem. & Ord. 9, Jan. 10, 2013, ECF No.

Moreover, the Gomez case is inapposite.

There, the

case was dismissed pursuant to 28 U.S.C. § 1915(e)(2) as
frivolous and failing to state a claim.
795.

Gomez, 171 F.3d at

Here, although on initial screening the Court found

that Tucker’s Complaint failed to state a claim, ultimately
the Complaint was dismissed for failure to comply with this
Court’s orders.
Tucker

(Mem. & Ord. 3-4, June 6, 2013.)

describes

the

ways

in

which

he

would

Finally,
amend

the

“currently operative pro se complaint.”

(Mot. to Amend 1;

see

is

also

id.

1-3.)

However,

there

no

“currently

operative pro se complaint,” as Tucker’s original Complaint
was

dismissed

and

the

case

closed.

Therefore,

there

is

nothing to amend.
Again the Court is not persuaded by Tucker’s reasons
for his noncompliance.

Therefore, the Motion to Reopen and

Motion to Amend are DENIED.
Tucker’s

original

The Court notes, however, that

Complaint
5

was

dismissed

without

prejudice.

Accordingly,

he

is

free

to

file

a

new

complaint. 2
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: March 26, 2014

2

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 (e.g., the
original Complaint, affidavits, etc.);
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, ECF. No. 8.)
6