United States District Court, D. Maine
JON R. ADAMS, Plaintiff
SCOTT LANDRY et al., Defendants
RECOMMENDED DECISION ON MOTION TO DISMISS
C. Nivison U.S. Magistrate Judge
action, Plaintiff, an inmate at the Maine Correctional Center
in Windham, contends Defendants have violated his
constitutional rights. In essence, Plaintiff asserts that
Defendants failed to provide for his safety while he was
matter is before the Court on Defendants’ Second Motion
to Dismiss (ECF No. 42), through which motion Defendants ask
the Court to dismiss the action based on Plaintiff’s
failure to prosecute his claim. I recommend the Court grant
the motion and dismiss the action without prejudice.
17, 2015, Plaintiff commenced this action in which he asserts
claims based on the conditions of his confinement at the
Maine Correctional Center in Windham, Maine. In his amended
complaint, Plaintiff alleges Defendants were deliberately
indifferent to his safety beginning in or around March 2015.
(Am. Compl., ECF No. 25.)
September 28, 2015, Plaintiff informed the Court that he was
no longer in state custody; Plaintiff provided the Court with
a new address in Portland, Maine. (ECF No. 31.) On November
27, 2015, Plaintiff again notified the Court of a change of
address. At that time, he advised that he was being detained
in the Cumberland County Jail and he requested information
regarding the “status of [his] pending suits in this
Court.” (ECF No. 36.) On December 7, 2015,
Plaintiff filed a third notice in which he informed the Court
that he was soon to be released to a rehabilitation center in
Auburn, Maine, and he provided the address of the center.
(EFC No. 37.)
December 15, the Court issued its order on Plaintiff’s
motion for a temporary restraining order. (ECF No. 38.)
Subsequently, the Court issued a scheduling order, in which
order the Court, inter alia, designated April 20, 2016, as
the deadline for Plaintiff to make a settlement demand of
Defendants. (ECF No. 39 at 2.) The Clerk mailed the orders to
Plaintiff at the address he provided in Auburn, Maine. By
January 14, 2016, the postal service returned to the Court
both articles of mail stamped “not deliverable as
addressed, unable to forward, ” and the writing on both
articles of mail suggested that Plaintiff had moved from the
rehabilitation center. (ECF Nos. 40, 41.) Plaintiff has not
informed the Court of any further change of address, nor has
Plaintiff otherwise made any filings or communicated with the
to Federal Rule of Civil Procedure 41, a defendant may move
for dismissal of an action if the plaintiff fails to
prosecute the action or to comply with court rules and court
orders. Fed.R.Civ.P. 41(b). The record establishes that
Plaintiff never served Defendants with a settlement demand as
required by the Scheduling Order. (Aff. of Diane Sleek ¶
6, ECF No. 42-1.) In addition, Plaintiff has not communicated
with Defendants since September 2015, and Plaintiff last
communicated with the Court in December 2015. Defendants
contend dismissal is appropriate because Plaintiff has failed
to prosecute the action. Defendants in part argue that under
the circumstances, they should not have to incur the expense
and burden of moving for summary judgment, or otherwise
remain as a party to a lawsuit.
to litigation have a duty to inquire periodically regarding
the status of the litigation and to keep the court informed
of their current address and contact information. United
States v. Guerrero, 302 Fed. App’x 769, 771 (10th
Cir. 2008); Lewis v. Hardy, 248 Fed. App’x
589, 593 (5th Cir. 2007) (per curiam); Carvel v.
Durst, No. 1:09-cv-06733, 2014 WL 787829, at *1 n.5
(S.D.N.Y. Feb. 25, 2014); Am. Arbitration Ass’n,
Inc. v. Defonseca, No. 1:93-cv-02424, 1997 WL 102495, at
*2 (S.D.N.Y. Mar. 6, 1997) (“[A] litigant’s
obligation to promptly inform the Court and the opposing
party of an address change is a matter of common sense, not
legal sophistication.”); see also Information
for Pro Se Parties, Responsibilities of the Pro Se Litigant
¶ 6: “You must keep the Court and the other party
advised of any change of your address or telephone number.
… Failing to do so may result in the imposition of
sanctions, which could include the dismissal of your
case.” (United States District Court, D. Maine handout
for pro se litigants, also available online). Insofar as on
three prior occasions Plaintiff notified the Court of his
change of address, Plaintiff is evidently aware of his
obligation to remain in contact with the Court.
Plaintiff has not contacted the Court or Defendants for more
than seven months. The discovery period has expired and the
case is currently scheduled for trial in September 2016.
Given Plaintiff’s failure to prosecute this matter, to
subject Defendants to the uncertainty of continuing
litigation and the expense of further motion practice would
be unfair. This case illustrates the reason Rule 41(b) exits.
That is, “[i]n order to operate effectively and
administer justice properly, courts must have the leeway
‘to establish orderly processes and manage their own
affairs.’” Id. (quoting Young v.
Gordon, 330 F.3d 76, 81 (1st Cir. 2003)). In short,
dismissal is warranted in this case.
dismissal is appropriate, the issue is whether the dismissal
should be with prejudice. Unless the court directs otherwise,
an order granting a motion under Rule 41(b) “operates
as an adjudication on the merits.” Id. As a
general rule, however, dismissal of an action with prejudice
is a sanction reserved for the most extreme misconduct.
Vazquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st Cir.
2011). Because Plaintiff has in the past demonstrated an
interest in prosecuting the action, and because
Plaintiff’s failure to communicate with the Court and
counsel could be a product of his several moves over the last
year, Plaintiff’s conduct cannot reasonably be
construed as extreme. Accordingly, dismissal without
prejudice is appropriate.
on the foregoing analysis, I recommend the Court grant
Defendant’s Second Motion to Dismiss (ECF No. 42), and