United States District Court, D. Maine
RECOMMENDED DECISION TO DISMISS PLAINTIFF'S
C. NIVISON U.S. MAGISTRATE JUDGE
April 30, 2018, Plaintiff filed the complaint in this matter
(Complaint, ECF No. 1.) On May 18, 2018, Plaintiff moved for
leave to proceed in forma pauperis. (Motion, ECF No. 3.)
Because Plaintiff did not file a properly completed
application to proceed in forma pauperis, the Court denied
without prejudice Plaintiff's motion. (Order, ECF No. 4.)
order denying Plaintiff's motion, the Court directed the
Clerk to provide Plaintiff with a form application to proceed
in forma pauperis, and ordered Plaintiff to file an
application or pay the filing fee by June 18, 2018.
(Id.) The Court cautioned Plaintiff that if she
failed to pay the filing fee or file a completed application
on or before June 18, the Court could dismiss the matter.
(Id.) The court docket reflects that the Court's
order, which was mailed to Plaintiff at the address listed
for Plaintiff on the court's docket, was returned
“not deliverable as addressed unable to forward.”
(ECF No. 5.) Plaintiff has not paid the filing fee or filed a
completed application to proceed in forma pauperis. A review
of the court docket reveals that Plaintiff has not
communicated with court after the date on which she filed the
motion to proceed in forma pauperis.
recommend the Court dismiss without prejudice Plaintiff's
complaint based on Plaintiff's failure to prosecute the
order to operate effectively and administer justice properly,
courts must have the leeway ‘to establish orderly
processes and manage their own affairs.'”
Vazquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st Cir.
2011) (quoting Young v. Gordon, 330 F.3d 76, 81 (1st
Cir. 2003)). “A 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. Dep't of Educ. of
Commonwealth of P.R., 108 Fed.Appx. 638, 640 (1st Cir.
2004). In addition, parties 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.”);
failing to pay the filing fee or to file a completed
application to proceed in forma pauperis, and by failing to
maintain a current address with the court or otherwise remain
in communication with the court, Plaintiff has failed to
prosecute her claim.
considering an appropriate sanction for failure to prosecute,
a court “should consider the totality of events and
then choose from the broad universe of available sanctions in
an effort to fit the punishment to the severity and
circumstances of the violation.” Young, 330
F.3d at 81. Given Plaintiff's failure to communicate with
the Court, a sanction other than dismissal, such as a
monetary fine, indefinite stay, or preclusion of particular
claims or evidence, would not serve the Court's interest
in the orderly progression of the case on the docket.
order of dismissal for failure to prosecute can be entered
with prejudice or without prejudice. The sanction of
dismissal with prejudice - i.e., a sanction that
would resolve the merits of the case in Defendant's favor
- is reserved for the most extreme misconduct. Id.
In this case, Plaintiff's failure to pay the filing fee
or to pay the appropriate in forma pauperis motion, and
Plaintiff's failure otherwise to communicate with the
court could be the product of a lack of knowledge of the
process, rather than an intentional disregard for the
process. Under the circumstances, therefore, Plaintiff's
conduct cannot fairly be characterized as extreme.
Accordingly, dismissal without prejudice is appropriate.
on the foregoing analysis, I recommend the Court dismiss
Plaintiff's complaint without prejudice based on
Plaintiff's failure to prosecute the matter.
also filed a pleading that was docketed as a motion for
clarification. (ECF No. 2.) In the motion, Plaintiff
evidently asks the Court “to rule” whether the
case is within this Court's jurisdiction. If the Court
adopts the recommendation and dismisses the matter,
Plaintiff's motion for clarification would be moot. I
recommend, therefore, that if the Court adopts the
recommendation and dismisses the matter, the Court dismiss as
moot Plaintiff's motion for clarification.
may file objections to those specified portions of a
magistrate judge's report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C. §
636(b)(1)(B) for which de novo review by the
district court is sought, together with a ...