Addison v. USA

UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bobby V. Addison
v. Civil No. 15-cv-399-JL
United States of America
REPORT AND RECOMMENDATION
Before the court is defendant United States of America’s
motion to dismiss (Doc. No. 11) this Federal Tort Claims Act
case filed by plaintiff Bobby V. Addison. For the reasons set
forth below, the court recommends that this action be dismissed
without prejudice, for failure to prosecute, and that the
pending motion to dismiss then be denied as moot.
Background
Addison filed this action while he was incarcerated at the
Federal Correctional Institution, Berlin, New Hampshire (“FCI-
Berlin”). Addison was subsequently transferred to a Residential
Reentry Management Center in Baltimore, Maryland (“RRM-
Baltimore”) in anticipation of his release. Mail sent to
Addison at FCI-Berlin was returned to the court undelivered in
March 2016, and mail sent to Addison at RRM-Baltimore was
returned to the court undelivered in April 2016.
After Addison was released from prison, the court obtained
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an address for Addison on 46th Street in Washington, D.C. Mail
sent to that address was returned to the court undelivered on
June 27, 2016. See Doc. No. 12. Mail sent to Addison at the
parole services building on Indiana Avenue in Washington, D.C.
was returned to the court undelivered on July 18, 2016. See
Doc. No. 13.
The court has since obtained another address for Addison,
on Savannah Terrace in Washington, D.C. On October 25, 2016,
the court sent Addison, at that address, a copy of the
defendant’s motion to dismiss (Doc. No. 11), as the record
indicated Addison may not have received a copy of that motion,
along with an order granting Addison until November 15, 2016 to
either object to that motion or to seek an extension of that
deadline. That mail has not been returned to the court.
Addison has not filed anything in response to the motion to
dismiss or the court’s order extending his deadline to object.
Discussion
“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), including
failure of the plaintiff to comply with any order of the court.”
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007). A
plaintiff’s failure to diligently prosecute a case provides a
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basis for the court to dismiss a complaint sua sponte. Cintrón–
Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d 522,
526 (1st Cir. 2002).
The court, mindful of “‘the strong presumption in favor of
deciding cases on the merits,’” García-Pérez v. Hosp.
Metropolitano, 597 F.3d 6, 7 (1st Cir. 2010) (citation omitted),
considers the totality of the circumstances in determining
whether dismissal with prejudice for failure to prosecute is
appropriate. See Diaz-Santos v. Dep’t of Educ., 108 F. App’x
638, 640 (1st Cir. 2004).
Dismissal 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.... [W]here the
case is close, courts should prefer less severe
sanctions that preserve the possibility of disposition
on the merits.
Pomales v. Celulares Telefónica, Inc., 342 F.3d 44, 48 (1st Cir.
2003) (internal citations and quotation marks omitted).
Since filing his complaint, Addison has failed to take any
action in this matter, other than filing a motion to proceed in
forma pauperis (Doc. No. 4) on October 19, 2015, and paying an
initial filing fee on November 23, 2015. Addison did not file
any notice apprising the court of his changes of address,
although the court’s local rules clearly advise litigants of
their duty to do so. See LR 83.6(e). It appears that Addison
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has abandoned this case.
Considering the totality of the circumstances, dismissal
without prejudice is proper. While plaintiff’s apparent
abandonment of the case and failure to update the court as to
his new address has lasted more than a year, it is not clear
that Addison violated a court order of which he had actual
knowledge. Moreover, Addison has not previously been advised
that the court would dismiss this matter if he failed to respond
to a court order. Accordingly, while dismissal for failure to
prosecute is appropriate, Addison’s conduct does not warrant the
severe sanction of dismissal with prejudice.
Conclusion
For the foregoing reasons, the district judge should
dismiss this case without prejudice, for failure to prosecute.
Additionally, the district judge should deny the pending motion
to dismiss (Doc. No. 11) as moot.
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
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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 4, 2017
cc: Bobby V. Addison, pro se
Robert J. Rabuck, Esq.
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