Moore v. United States Postal Service

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 10 Report and Recommendations. The court OVERRULES Plaintiffs objection 11 , and therefore ADOPTS IN FULL Magistrate Judge Peads Report and Recommendation. Plaintiffs action is DISMISSED WITHOUT PREJUDICE. Case Closed. Signed by Judge Jill N. Parrish on 10/10/2018. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DONALD K. MOORE,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE,
Defendant.

ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING
CASE WITHOUT PREJUDICE
Case No. 1:17-CV-182
District Judge Jill N. Parrish

Pro se plaintiff Donald K. Moore, proceeding in forma pauperis (“IFP”), initiated suit
against the United States Postal Service on December 1, 2017. (ECF No. 3). On April 26, 2018,
Magistrate Judge Pead issued an order that apprised Mr. Moore of deficiencies in his complaint,
and granted leave to address those problems in an amended complaint. (ECF No. 7). On May 29,
2018, Mr. Moore filed his first amended complaint. (ECF No. 8). Magistrate Judge Pead
subsequently issued an order finding the first amended complaint similarly insufficient. (ECF
No. 9). Magistrate Judge Pead yet again granted leave to amend, and the order provided Mr.
Moore with a straightforward roadmap to assist him in drafting his next complaint. Magistrate
Judge Pead warned that he would recommend that the court dismiss Mr. Moore’s action if he
failed to file a second amended complaint that complied with that order within twenty days.
Because no second amended complaint materialized, Magistrate Judge Pead issued a
Report and Recommendation on August 28, 2018, that the court dismiss Mr. Moore’s action for
failure to prosecute. (ECF No. 10).

Mr. Moore filed a timely objection to the Report and Recommendation. (ECF No. 11).
Because Mr. Moore objected to the Magistrate Judge’s order, the court “must determine de
novo” whether his objections have merit. Fed R. Civ. P. 72(b)(3). This is no small task, however,
because Mr. Moore does not identify the “part of the magistrate judge’s disposition” to which he
objects. Id. Mr. Moore’s filing consists not of an explanation for his failure to file a second
amended complaint, but rather of an even more abbreviated iteration of his earlier complaints. It
reads, in its entirety:
I, Donald K. Moore, The Plaintiff in said case, do hearby [sic] object To The Case
being recommended For dismissal because
1. The U.S. Postal Service denied me time to drink water on my route
and adequately hydrate.
2. Because They denied me water on my route, I suffered dehydration
symptoms such as dizziness and physical hardship.
3. The U.S. Postal Service was aware of my heat exhaustion From
doctors orders and Their negligence by not allowing me to drink water
exacerbated my heat exhaustion.
There is nothing in this filing that even approaches an explanation of Mr. Moore’s failure
to comply with Magistrate Judge Pead’s order. But even if the court overlooked this unexplained
procedural default and construed his objection as a second amended complaint, it would
nevertheless dismiss the action because Mr. Moore’s allegations remain inadequate to apprise the
defendant of the claim it is facing. Under Rule 8 of the Federal Rules of Civil Procedure, a
complaint must contain (1) a short and plain statement of the grounds for the court’s jurisdiction,
(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.
Construing Mr. Moore’s objection as a second amended complaint, the court finds that
Mr. Moore has not satisfied any of these requirements. The complaint is deficient not because it
fails to comply with legal formalities. Rather, Mr. Moore does not set forth the kind of factual

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narrative a defendant would need to begin assessing the claim and ascertaining available
defenses. Beyond that, the complaint does not even attempt to identify a cause of action that
might entitle the plaintiff to relief.
Mr. Moore was given ample opportunity to remedy his deficient pleading. Magistrate
Judge Pead provided him with a numbered list of items to include in his second amended
complaint. Mr. Moore failed to file a second amended complaint, and when he attempted to file
an untimely complaint in the guise of an objection to the Report and Recommendation, it did not
include the items the Magistrate Judge had identified. For these reasons, the action must be
dismissed without prejudice.
ORDER
The court OVERRULES Plaintiff’s objection, (ECF No. 11), and therefore ADOPTS IN
FULL Magistrate Judge Pead’s Report and Recommendation, (ECF No. 10). Plaintiff’s action is
DISMISSED WITHOUT PREJUDICE.

Signed October 10, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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