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Elzy v. Williams

United States District Court, Tenth Circuit

November 13, 2013

DARRELL MICHAEL ELZY, Plaintiff,
v.
NORMAN D. WILLIAMS, et al., Defendants.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

This 2011 civil rights action comes before the court with a lengthy history but little progress. The case is presently before the court on Defendants' Motion to Dismiss (Doc. 17), to which plaintiff filed no response. When plaintiff failed to respond, the court entered an order to show cause why the motion should not be granted as uncontested. Plaintiff timely replied to the court's order, but asked for more time to oppose defendants' motion. In deciding whether to grant additional time, the court reviews the history of the case, outlined in the chart below:

Date Events May 16, 2011 Plaintiff filed his complaint against multiple employees of the City of Wichita Police Department, alleging violations of 42 U.S.C. § 14141, 18 U.S.C. § 241, 18 U.S.C. § 242, and the Fourth Amendment. December 14, 2011 The court issued an order to show cause why the action should not be dismissed for failure to timely effect service. January 27, 2012 Plaintiff responded that he was currently deployed overseas in the military and requested a stay of the case. February 2, 2012 The court stayed the case until November 30, 2012. December 26, 2012 Plaintiff requested continuance of the case while he attempted to find counsel. January 10, 2013 The court granted plaintiff's motion to continue, giving plaintiff until April 1, 2013, to locate counsel and effect service. The court warned plaintiff that "[i]f no action is taken by that date the Court will issue an Order to Show Cause why the matter should not be dismissed." April 8, 2013 When plaintiff failed to serve defendants by April 1, the court issued another order to show cause why the case should not be dismissed by May 10, 2013.

May 10, 2013 Plaintiff responded that he had again been deployed overseas and asked for a continuance. May 16, 2013 The court gave plaintiff "one more chance" to serve defendants by July 1, 2013, and remarked that it "[did] not intend, however, to extend the time again." (Doc. 13 at 1.) July 1, 2013 Plaintiff's most recent deadline to effect service passed, but plaintiff did not file a return of service of summons. July 19, 2013 Defendants filed a motion to dismiss. (Doc. 17.) July 30, 2013 Plaintiff apparently proceeded to travel on his next deployment. (Doc. 21 at 1.) August 9, 2013 Plaintiff's response to defendants' motion to dismiss was due, but plaintiff did not respond. August 26, 2013 The court directed plaintiff to (1) show cause in writing why he failed to timely file a response to defendants' motion, and (2) file a response to defendants' motion on or before September 3, 2013. The court explained that if plaintiff failed to "fully comply with this order, " the court would "most likely" grant defendant's motion to dismiss. (Doc. 19 at 2.) September 3, 2013 Plaintiff responded to the court's order to show cause. He did not file a separate response to defendants' motion to dismiss.

I. Should the court consider defendants' motion to dismiss without the benefit of a response by plaintiff?

Under D. Kan. Rule 6.1(d), plaintiff had twenty-one days to respond to defendant's motion to dismiss. Plaintiff did not timely respond or request additional time. Despite this, the court may, for good cause, extend the time to respond. Fed.R.Civ.P. 6. After receiving the court's order to show cause, plaintiff gave the following explanation for his lack of response to the motion:

I Darrell Michael Elzy humbly submit this Request for Continuance as the [plaintiff] in the case of Elzy v. Williams et al named above case. I am currently deployed overseas in Jordan and due to the nature of the environment here I am unable to respond to the [defendants'] Motion to Dismiss for Failure to State a Claim request in a timely manner. I pray for relief and request[] under the Servicemembers Civil Relief Act... that I [be] given an extension due to the nature of the world events and not having the means to properly respond. I have attached a copy of my orders which states that I am suppose[d] to be here on a special mission for up to 124 days. After which I will be returning to Tampa, Florida to continue serving on active duty as a mobilized reservist with the Marine Corps Central Command (MARCENT)....

(Doc. 22 at 1.)

Considered out of context, plaintiff's response might appear to show good cause for an extension. But the court cannot fully evaluate plaintiff's response without also reviewing the history of the case. The court previously entered two other orders to show cause in this case. In response to the first order, plaintiff offered the following:

I am currently deployed overseas in the military (enclosure 2). I requested that my mail be forwarded to me while deployed in April 2011 (Enclosure 3). The USPS did not honor my request by forwarding the mail (enclosure 4). Therefore, since the package was not forwarded in May 2011 and I had no way of obtaining the package within the allot[ted] time frame through no fault of my own, I respectfully request that my case be continued without prejudice and be extended until I am off of military orders and/or able to find an attorney to represent me.

(Doc. 6 at 1.) Responding to the second order to show cause on May 10, 2013, plaintiff wrote:

I would like to continue my case and I am working to move forward. I was deployed to Bahrain from the period of 9 April-25 April 2013 in support of CENTCOM exercise. I am still in the process of attempting to find legal representation in the State of Kansas.... I did contact a process server, but the paper work that I have on file is dated May 2011. I was informed by ...

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