United States District Court, D. Maine
ROY A. DAY, Plaintiff
LORNA R. GREY, et al., Defendants
H. Rich III United States Magistrate Judge
February 17, 2017, after the pro se plaintiff was
directed for a fourth time to provide names and addresses of
the defendants to facilitate service of his complaint by the
U.S. Marshal, he filed a motion to stay the instant case
pending the resolution of a state-court case that he
indicates he commenced out of frustration with the pace at
which this case was proceeding. See Plaintiff's
Motion To Stay (“Motion To Stay”) (ECF No. 22).
He provides neither names nor addresses for the defendants,
apart from stating that the court can find the addresses for
two of the defendants in his complaint. See id. at
. Because the plaintiff has failed, despite multiple
opportunities, to provide this straightforward information or
to show cause why he cannot do so, and has himself indicated
a preference to proceed in state court, I recommend that the
court deny the Motion To Stay and dismiss this case without
December 9, 2016, I issued an order directing that the
plaintiff provide the defendants' full names and
addresses to facilitate preparation by the Clerk's Office
of the necessary documents for service by the U.S. Marshal.
See ECF No. 17. On December 23, 2016, the plaintiff
was ordered to provide that information no later than January
6, 2017. On January 4, 2017, the plaintiff filed a motion to
extend time to comply with the court's December 23, 2016,
directive, stating that he had had a relapse of a medical
disability and was unable to work on legal matters at that
time. See ECF No. 18. The following day I granted
that motion, directing that the plaintiff provide the
defendants' full names and addresses no later than
January 20, 2017. See ECF No. 19. I noted that
“this is the third time that the plaintiff has been
directed to provide this straightforward information[,
]” pointed out that he had provided no corroboration of
a medical relapse, and advised that “failure to comply
with this order could result in the dismissal of this action
for lack of prosecution.” Id.
response, on January 18, 2017, the plaintiff filed a motion
for a 60-day extension of his deadline to provide names and
addresses. See ECF No. 20. He also sought to
corroborate his medical disability by asking the court to
take judicial notice of a Social Security disability
proceeding. See id.
January 19, 2017, I granted the motion in part, directing
that, no later than February 21, 2017, “the plaintiff
shall either provide the full names and addresses of the
defendants or show cause why he is unable to do so, failing
which I shall recommend that this action be dismissed without
prejudice for failure to prosecute.” ECF No. 21. I
noted: “This is now the fourth time that the plaintiff
has been directed to provide this straightforward information
and the second time that he has filed a motion to extend his
deadline to do so on the basis of an uncorroborated medical
disability[.]” Id. I declined to take judicial
notice of the Social Security proceeding but noted that, even
assuming that those records documented a medical disability,
“the plaintiff does not explain, nor would this court
be equipped to determine as a medical matter, how that
disability has prevented him from complying with the
court's directive to provide straightforward information,
particularly in a circumstance where he has been able to file
two comparatively sophisticated motions to extend time to
comply with that directive.” Id.
response, the plaintiff filed the Motion To Stay.
plaintiff represents that his state-court case “is now
pending and is now the ‘Lead Case, ' with
Defendants being served.” Motion To Stay at 
(emphasis omitted). He describes the state court as “a
more compatible court, ” given the federal courts'
asserted “bias and prejudice” against him.
Id. at . Yet, he seeks a stay, rather than
dismissal, of the instant case on the basis of an asserted
need “to ensure the statute of limitation issues are
not violated.” Id.
plaintiff's repeated failure to provide straightforward
information to prosecute this case or show cause why he could
not do so dooms his bid to maintain the case in this court
while he litigates what appear to be the same issues in a
later-filed parallel state-court case. Even had he diligently
prosecuted the instant case, he has made no showing that its
dismissal would jeopardize his claims on statute of
limitations grounds. Accordingly, I recommend that the Motion
To Stay be denied and that this case be dismissed.
district court's inherent powers to sanction parties for
litigation abuses include the power to act sua
sponte to dismiss a suit for failure to
prosecute.” Diaz-Santos v. Department of Educ. of
Commonwealth of P.R., 108 Fed.Appx. 638, 640 (1st Cir.
2004). In addition, Federal Rule of Civil Procedure 41(b)
provides, “If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). “Although Rule 41(b) refers only to
dismissal on a motion made by a defendant, district courts
may also sua sponte dismiss a complaint under Rule
41(b) for failure to comply with a court order.”
Unitronics (1989) (R”G) Ltd. v. Gharb, 85
F.Supp.3d 118, 126 (D.D.C. 2015).
plaintiff's failure to provide the names and addresses of
the defendants to facilitate the service of his complaint or
show cause in writing why he could not do so warrants the
dismissal of this action. See, e.g., United States v.
Edmunds, Case No. 15-cv-2705 (JRT/TNL), 2016 WL 7670605,
at *5 (D. Minn. Dec. 6, 2016) (rec. dec., aff'd
Jan. 10, 2017) (“[W]hile pro se litigants are accorded
a certain degree of latitude, Defendant's pro se status
does not excuse him from complying with this Court's
orders as well as the Federal Rules of Civil Procedure and
the Court's Local Rules.”).
although dismissal is appropriate, a separate issue remains
whether the dismissal should be with prejudice. Unless the
court directs otherwise, a dismissal for failure to prosecute
“operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b). As a general rule, however, dismissal of
an action with prejudice is a sanction reserved for the most
extreme misconduct. See, e.g.,
Vázquez-Rijos v. Anhang, 654 F.3d 122, 127-28
(1st Cir. 2011). For example, “[d]ismissal with
prejudice for failure to prosecute is appropriate in the face
of extremely protracted inaction (measured in years),
disobedience of court orders, ignorance of warnings,
contumacious conduct, or some other aggravating
circumstance.” Pomales v. Celulares
Telefónica, Inc., 342 F.3d 44, 48 (1st Cir. 2003)
(citations and internal quotation marks omitted).
“[W]here the case is close, courts should prefer less
severe sanctions that preserve the possibility of disposition
on the merits.” Id.
plaintiff failed to comply with four consecutive court
orders, seemingly choosing to abandon this case in favor of a
later-filed action in state court. This failure arguably
warrants dismissal with prejudice; however, given his pro
se status, and erring on ...