Stuart et al v. Laconia Housing Authority et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sarah Stuart, et al.
v. Case No. 16-cv-332-PB
Laconia Housing Authority, et al.
REPORT AND RECOMMENDATION
The pro se plaintiffs, Sarah Stuart and Cody Stuart, bring
this action against the defendants, Laconia Housing Authority
and Kelly McAdam, alleging violations of federal law. This
matter is before the court for preliminary review to determine
whether the complaint asserts any claim upon which relief might
be granted. See 28 U.S.C. § 1915(e)(2)(B); LR 4.3(d)(2).
Discussion
On November 15, 2016, the court issued an order finding
that the plaintiffs had not alleged sufficient facts in their
complaint to support a claim for relief, but nonetheless
granting the plaintiffs thirty days to amend their complaint to
remedy this deficiency. On that same day, the Clerk’s office
mailed copies of the order to both plaintiffs at the address
they had provided to the court. (Doc. nos. 6, 7.) On December
8, 2016, the copy mailed to Cody Stuart was returned to the
court with a notice indicating that Cody Stuart had moved and
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had left no forwarding address. (Doc. no. 6-1.) The copy sent
to Sarah Stuart was returned with an identical notice the
following day. (Doc. no. 7-1.)
“A district court, as part of its inherent power to manage
its own docket, may dismiss a case for any of the reasons
prescribed in Federal Rule of Civil Procedure 41(b) . . .”
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007).
These reasons include, among others, the failure to comply with
any order of the court, id., and the failure to diligently
prosecute a case, Cintrón–Lorenzo v. Departamento de Asuntos del
Consumidor, 312 F.3d 522, 526 (1st Cir. 2002) (citation
omitted).
The court, mindful of “the strong presumption in favor of
deciding cases on the merits,” Garcia–Pérez v. Hosp.
Metropolitano, 597 F.3d 6, 7 (1st Cir. 2010), considers the
totality of the circumstances in determining whether dismissal
is appropriate. See Diaz–Santos v. Dep’t of Educ., 108 F. App’x
638, 640 (1st Cir. 2004). In particular, the court considers
whether: 1) plaintiffs prosecuted their claims diligently prior
to their apparent abandonment of the lawsuit; 2) the court
fairly warned plaintiff of its inclination to dismiss absent
diligent prosecution; and 3) the ramifications of the
plaintiffs’ failure to prosecute “constituted misconduct
sufficiently extreme to justify dismissal with prejudice.” Id.
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internal quotation marks and citations omitted).
Here, the plaintiffs have not taken any action since
September 7, 2016, did not provide an alternate address in any
of their pleadings or filings, and failed to provide the court
with an updated address when they moved. This court’s local
rules clearly advise litigants that they must keep the court
apprised of their current address. See LR 83.6(e). Further,
the local rules state that “pro se parties who fail to provide
the clerk’s office with their current address . . . are not
entitled to notice.” Id. And, as noted, the court indicated to
the plaintiffs in the November 15, 2016 order that the
plaintiffs had not stated a claim and required that they submit
an amended complaint within thirty days. In light of these
circumstances, the court finds it appropriate to recommend that
the district judge dismiss this action for failure to prosecute.
The court declines, however, to recommend that this matter
be dismissed with prejudice. Simply put, the plaintiffs’
actions here do not rise to the level where such a sanction is
countenanced in our precedent. See Pomales v. Celulares
Telefónica, Inc., 342 F.3d 44, 48 (1st Cir. 2003) (noting the
factors a court should consider when determining whether
dismissal with prejudice for failure to prosecute is
appropriate).
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Conclusion
In sum, the court recommends that the district judge
dismiss this action without prejudice for failure to prosecute.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 27, 2017
cc: Sarah Stuart, pro se
Cody Stuart, pro se
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