United States District Court, D. Kansas
BRUCE CLEMENT PENNINGTON, JR. and VANESSA KAY OLLER, as parents of minor S. G. O., Plaintiffs,
SAINT FRANCIS COMMUNITY SERVICES, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
E. BIRZER United States Magistrate Judge.
matter is before the Court on plaintiff Bruce Clement
Pennington, Jr.'s Motion for Leave to Proceed Without
Payment of Fees (ECF No. 4, sealed) and his Motion for
Appointment of Counsel (ECF No. 5). After a review of the
docket in this matter, the undersigned Magistrate Judge
DENIES the motion for appointment of counsel
(ECF No. 5); and RECOMMENDS
DENIAL of the motion for in forma pauperis
(ECF No. 4) and RECOMMENDS
dismissal pursuant to 28 U.S.C. § 636(b)(1)(B).
filed their Complaint, acting pro se, on November 7, 2017.
The matter was before the Court on plaintiff Bruce Clement
Pennington, Jr.'s Motion for Leave to Proceed Without
Payment of Fees and attached affidavit of financial resources
(ECF No. 4, sealed) and his Motion for Appointment of Counsel
(ECF No. 5). After review of those pleadings, the Court
determined it required additional information in order to
decide the motions.
November 21, 2017, the Court sent a letter to Plaintiffs
outlining three specific deficiencies in their filings.
First, only Mr. Pennington, and not Ms. Oller, filed a motion
for leave to proceed without payment of fees. However, a
separate motion and affidavit is necessary for each named
plaintiff wishing to proceed without payment of fees, in
order for the Court to properly consider the request. Second,
Mr. Pennington's financial affidavit was incomplete, and
did not clearly outline his current income. Finally, Mr.
Pennington was the sole named Plaintiff who submitted a
motion for appointment of counsel, and his motion was
incomplete. Mr. Pennington did not disclose those attorneys
with whom he has consulted, as required. (See Notice
and Order to Show Cause, ECF No. 7.)
with the November 21 letter, the Court mailed forms to
Plaintiffs for their use, and encouraged them to utilize the
Court website. The letter informed Plaintiffs that failure to
supplement their filings may result in negative consequences
to their case, up to and including a recommendation of
dismissal. The Court entered an Order establishing a deadline
of December 15, 2017, for Plaintiffs to supplement their
previous filings (Order, ECF No. 6). Plaintiffs did not
January 10, 2018, the undersigned U.S. Magistrate Judge
ordered Plaintiffs to show cause, on or before January 26,
2018, why she should not recommend dismissal of
Plaintiffs' claims based upon their failure to supplement
as ordered. The Notice and Order to Show Cause (ECF No. 7)
was mailed to Plaintiffs by certified mail, return receipt
delivery, at Plaintiffs' last known address. The Notice
was returned to the Court as “Return to Sender;
Unclaimed; Unable to Forward.” (ECF No. 8.) This brings
the Court to the current posture of the case, which has shown
no action by either Plaintiff since November 16, 2017.
Plaintiffs' mailing address, reflected on the electronic
docket and utilized by the Court, was provided to the
clerk's office at filing and is the address stated on the
Complaint (ECF No. 1, at 1) and the Civil Cover Sheet (ECF
No. 2). Local Rules require pro se parties to “notify
the clerk in writing of any change of address or telephone
number.” D. Kan. Rule 5.1(c)(3). “Any notice
mailed to the last address of record of an attorney or pro se
party is sufficient notice.” (Id.)
a different address is reflected for Mr. Pennington on an
envelope in which the Complaint was mailed, as well as on his
Affidavit of Financial Status (ECF No 4-1, sealed), the
Complaint and Cover Sheet clearly indicate the parties'
desire to “use” the following address as the
“primary mail contact”: 9435 W. Central, Apt. 2;
Wichita, Kansas 67212 (see notation on Civil Cover Sheet, ECF
No. 2). As the Tenth Circuit Court of Appeals has noted,
“it would be unreasonable to require courts to wade
through a party's file in order to determine the most
recent or most likely address at which to contact the
party.” Service of the prior Court orders, then,
was accomplished by “mailing it to [plaintiffs']
last known address-in which event service [was] complete upon
light of Plaintiffs' failure to provide adequate
information by which to consider the motions, the undersigned
DENIES Plaintiff Bruce Clement Pennington,
Jr.'s Motion for Appointment of Counsel (ECF No.
5), and RECOMMENDS that Plaintiff
Bruce Clement Pennington, Jr.'s Motion to Proceed In
Forma Pauperis (ECF No. 4) be
because Plaintiffs have failed to comply with the Court's
orders, and/or failed to provide the Court with a current
address, this Court RECOMMENDS this matter
be DISMISSED without prejudice. “A
court has the inherent power to dismiss an action for failure
to prosecute in order to ensure the orderly and expeditious
resolution of cases.” And, although the “pro se
plaintiff[s] must be afforded a liberal reading of [their]
pleadings, [they] must comply with the procedural rules and
statutes that govern all litigants.” Because
Plaintiffs have failed to prosecute this matter, and/or
failed to supply a current address, this case may be
IS THEREFORE RECOMMENDED that this matter be
dismissed without prejudice due to Plaintiffs' failure to
supplement the record as directed.
IS ORDERED that a copy of this recommendation shall
be mailed to Plaintiffs by certified mail. This mailing shall
be sent to the address listed on the Complaint and Cover
Sheet: 9435 W. Central, Apt. 2; Wichita, Kansas 67212; as
well as to the address contained on the envelope attached to
the Complaint: Bruce Pennington, Butler County Jail, 701 S.
Stone Rd.; El Dorado, Kansas 67042. Pursuant to 28 U.S.C.
§ 636(b)(1)(C) and Fed.R.Civ.P. 72(b), Plaintiffs may
file a written objection to the proposed findings and
recommendations with the clerk of the district court within
fourteen (14) days ...