Anderson v. Amason et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LORI ANDERSON, MOTHER AND NEXT )
OF KIN OF NICOLE DEANN MCCOMB, )
DECEASED, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-817-G
)
CHRIS AMASON, SHERIFF OF )
CLEVELAND COUNTY, IN HIS )
INDIVIDUAL AND OFFICIAL CAPACITY )
AND CLEVELAND COUNTY DETENTION )
CENTER, )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff, Lori Anderson, Mother and Next of Kin of Nicole Deann McComb,
Deceased, through counsel brings this action under 42 U.S.C. § 1983 and Oklahoma state
law. United States District Judge Charles B. Goodwin has referred the matter to the
undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B). For the following reasons, the undersigned recommends DlSMISSAL of
the action without prejudice based on Plaintiff’s failure to follow the Court’s orders—
specifically, failure to timely serve Defendant, show proof of that service or to show cause
for lack of service.
I. DISCUSSION.
Under Fed. R. Civ. P. 4, a plaintiff must serve the defendant with a copy of the
complaint and a summons properly completed and signed by the clerk of court within 90
days of initiating a civil action. Fed. R. Civ. P. 4 (a), (b) and (m).
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This matter was initiated on July 22, 2025. (ECF No. 1), therefore Plaintiff was
required to serve Defendant by October 21, 2025. On November 12, 2025, following
review of the Court record, the undersigned determined Plaintiff had neither filed proof
of service on any Defendant nor presented the Clerk of Court with a summons to be
issued. Accordingly, the Court then entered an Order requiring the Plaintiff no later than
November 26, 2025 to show cause for the failure to comply with Rule 4 service
requirements. Plaintiff was also warned that in the absence of a showing or other filing
by Plaintiff, the Court may recommend that this action be dismissed without prejudice to
refiling.
See ECF No. 4. To date, Plaintiff has not responded to the Court’s Order in any
way.
Under Fed. R. Civ. P. 41(b), a court may dismiss an action if the plaintiff “fails to
prosecute or to comply with these rules or a court order.” Courts have consistently
interpreted this rule to permit sua sponte dismissal.
Huggins v. Sup. Ct. of the U.S., 480
F. App’x 915, 916-17 (10th Cir. 2012);
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker &
Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court undoubtedly has
discretion to sanction a party for failing to prosecute or defend a case, or for failing to
comply with local or federal procedural rules.” (quoting
Reed v. Bennett, 312 F.3d 1190,
1195 (10th Cir. 2002))). And if dismissal is without prejudice, the court may dismiss
without attention to the non-exhaustive list of factors that, by contrast, must inform a
dismissal with prejudice.
AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
The undersigned finds that Plaintiff’s inaction and failure to comply with this
Court’s Order have left the Court without the ability “to achieve an orderly and
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expeditious” resolution of this case.
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)
(discussing the inherent power of a court to dismiss suits for lack of prosecution). As
stated above, the deadline to serve defendants was October 21, 2025, and the deadline
to show cause for failure to serve was November 26, 2025. Plaintiff has done neither and
thus has failed to comply with the Court’s Orders. The undersigned concludes, therefore,
that dismissal of this action without prejudice to refiling is warranted under Rule 41(b).
The undersigned therefore finds that Plaintiff’s failure to comply with the Court’s
Order, in light of the Court’s right and responsibility to manage its cases, warrants
dismissal of this action without prejudice.
See Nasious v. Two Unknown B.I.C.E. Agents
at Arapahoe County Justice Center, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (
sua
sponte dismissal for failure to comply with Court’s orders permitted under federal rules,
and court need not follow any particular procedures in dismissing actions without
prejudice for failure to comply).
II. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT.
Based on the foregoing findings, it is recommended that this action be
DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to comply with this Court’s
orders. Plaintiff is advised of his right to file an objection to this Report and
Recommendation with the Clerk of Court by December 23, 2025, in accordance with
28 U.S.C. §636 and Fed. R. Civ. P. 72. Plaintiff is further advised that any failure to make
timely objection to this Report and Recommendation waives the right to appellate review
of the factual and legal issues addressed herein.
Casanova v. Ulibarri, 595 F.3d 1120,
1123 (10th Cir. 2010).
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This Report and Recommendation terminates the referral to the undersigned
magistrate judge in the captioned matter.
ENTERED on December 9, 2025.
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