Muse v. Pepper et al

Filing 20

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS this action be DISMISSED WITHOUT PREJUDICE in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Barbara D. Holmes on 10/31/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MOHAMED MUSE
v.
SGT. PEPPER, et al.

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NO: 3:15-1520

TO: Honorable Waverly D. Crenshaw, Jr., District Judge

REPORT AND RECOMMENDATION
By Order entered April 22, 2016 (Docket Entry No. 9), the Court referred this pro se and in
forma pauperis civil rights action to the Magistrate Judge for pretrial proceedings under 28 U.S.C.
§§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules
of Court.
Mohamed Muse (“Plaintiff”) filed this action on December 28, 2015, alleging that, on an
unspecified date and at an unspecified location, he was subjected to a traffic stop, during which he
was detained by police officers and his vehicle was searched prior to his being released with no
charges lodged against him. He asserts that there was not probable cause for any of these actions.
In the order of referral, the Court found that Plaintiff stated an arguable claim under 42 U.S.C.
§ 1983 and directed that the Clerk send him service packets for the two named defendants, which
he was to complete and return to the Court. Plaintiff was also advised that he needed to take steps
to identify the defendants by their full names and that he needed to keep the Clerk’s Office informed
of his current address. At the time Plaintiff filed his lawsuit, he was a resident of Tennessee.
However, it appears that Plaintiff has since moved to Florida. See Docket Entry No. 16.

Service packets were not returned to the Court as directed. Accordingly, the Court issued
a second order to Plaintiff on August 10, 2016, directing the Clerk to again send two service packets
to Plaintiff and directing Plaintiff to complete the service packets and return them to the Clerk’s
Office by August 29, 2016. See Docket Entry No. 18. Plaintiff was specifically advised that his
failure to return the completed service packets within the time required would result in a
recommendation that this action be dismissed. The docket reflects that Plaintiff has not returned
completed service packets and, as a result, process has not issued to Defendants in this action.
Rule 4(m) of the Federal Rules of Civil Procedure requires that Defendants be served with
process within 90 days of the date this action was filed and provides that, in the absence of a showing
of good cause by Plaintiff for why service has not been timely made, the Court "must dismiss" the
action without prejudice. It is also well settled that Federal trial courts have the inherent power to
manage their own dockets, Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1961), and Rule 41(b) of the Federal Rules of Civil Procedure permits the Court to dismiss an action
upon a showing of a clear record of delay, contumacious conduct, or failure to prosecute by the
plaintiff. See Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir. 1980).
Plaintiff’s failure to return service packets to the Court has caused this action to lay dormant
for several months. Because process has not been served upon Defendants, Rule 4(m) requires
dismissal of the action. Additionally, Plaintiff’s failure to comply with the directives of the Court
indicates an apparent lack of interest in prosecuting the action and warrants the dismissal of the
action.1
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This Report and Recommendation provides notice to Plaintiff of the Court’s intention to
dismiss the action, and the fourteen day period for filing objections provides him with the
opportunity to show good cause why the action should not be dismissed.
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RECOMMENDATION
The Court respectfully RECOMMENDS this action be DISMISSED WITHOUT
PREJUDICE in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within ten (10) days of receipt of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District Court's
Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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