Hernandez v. Environmental Protection Agency ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIRIA HERNANDEZ,
Plaintiff,
v.
Civil Action No. 22-00266 (CKK)
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
MEMORADUM & ORDER
Plaintiff, Siria Hernandez, appearing pro se and in forma pauperis, has been completely
unresponsive in this matter for some time. On May 10, 2023, the Court ordered Plaintiff to show
cause why this matter should not be dismissed for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b) and D.C. Local Civil Rule 83.23. To date, Plaintiff has failed to file any
response or to otherwise participate in this case. Therefore, and for the reasons discussed below,
this matter will be dismissed without prejudice for failure to prosecute.
I. BACKGROUND
Plaintiff initiated this matter on January 31, 2022, by filing a Complaint (“Compl.”), ECF
No. 1, seeking relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. On May
17, 2022, the matter was assigned to this Court. Defendant the United States Environmental
Protection Agency (“EPA”) was fully served with process by July 22, 2022, see Returns of Service,
ECF No. 9, and filed its Answer, ECF No. 12, on August 22, 2022.
On September 13, 2022, the EPA filed a Status Report, ECF No. 13, indicating that it had
completed its production to Plaintiff, and further requesting that Plaintiff review the production
and then file a response indicating whether or not she was satisfied with the agency’s position.
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The Court agreed with this course of action, and entered a Minute Order on September 26, 2022,
directing Plaintiff to file a response to the EPA’s Status Report by October 28, 2022. If Plaintiff
objected to the EPA’s final production, the EPA would then propose a briefing schedule. See id.However, Plaintiff’s October 28th deadline elapsed, and she failed to file a response to the Status
Report, to seek an extension, or to otherwise respond to the Court’s Minute Order.
Consequently, on May 10, 2023, the Court entered an Order, ECF No. 16, directing
Plaintiff to show cause, in writing, by June 9, 2023, why this action should not be dismissed for
failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and D.C. Local Civil Rule 83.23. Plaintiff
was explicitly warned that failure to respond could result in the dismissal of the case. See id. at 2.
And although the Plaintiff has not updated her address with the Court, see D.C. LCvR 5.1(c)(1),
nor have any mailings been returned as undeliverable to her, the Court conducted its own search
through the Federal Inmate Locator, and directed the Clerk of Court to send a copy of its Order to
both Plaintiff’s address of record and another potential address. See id. The deadline to show
cause has since elapsed, and once again, Plaintiff has failed respond to the Court’s Order, or to
otherwise participate in this case.
II. LEGAL STANDARD
Pursuant to District of Columbia Local Civil Rule 83.23, “[a] dismissal for failure to
prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court’s own
motion.” “A Rule 41(b) dismissal is proper if, in view of the entire procedural history of the case,
the litigant has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor
Co., 761 F.2d 713, 714 (D.C. Cir. 1985) (per curiam). “A lengthy period of inactivity may . . . be
enough to justify dismissal,” at least when “the plaintiff has been previously warned that [she]
must act with more diligence, or if he has failed to obey the rules or court orders[.]” Smith–Bey v.
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Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988) (quoting 9 C. Wright & A. Miller, Federal Practice and
Procedure § 2370, at 205–07 (1971); citing Romandette v. Weetabix Co., Inc., 807 F.2d 309, 312
(2d Cir. 1986); Cherry v. Brown–Frazier–Whitney, 548 F.2d 965, 969 (D.C. Cir. 1976)).
The authority to dismiss suits for failure to prosecute has long been recognized as
“necessary in order to prevent undue delays in the disposition of pending cases and to avoid
congestion” in the courts. Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962). Further, “[t]he
court’s authority to dismiss a case for failure to prosecute or failure to follow the court’s orders is
not discarded simply because a plaintiff is proceeding pro se.” Allen v. United States, 277 F.R.D.
221, 223 (D.D.C. 2011). Although a pro se plaintiff is afforded some latitude in prosecuting her
case, “such leeway does not constitute a license for a plaintiff filing pro se to ignore the Federal
Rules of Civil Procedure,” a court’s local rules, or a court’s orders. Moore v. Robbins, 24 F. Supp.
3d 88, 97 (D.D.C. 2014) (internal quotation marks omitted) (citing Jarrell v. Tisch, 656 F. Supp.
237, 239 (D.D.C. 1987)).
III. DISCUSSION
Plaintiff has been absent from this case since March 24, 2022, more than 15 months ago.
See Prisoner Trust Accounting (“PTA”), ECF No. 4. She has failed to respond to the EPA’s Status
Report and to two of this Court’s Orders. Given her failure to comply with this Court’s directives
and her “lengthy period of inactivity,” Smith–Bey, 852 F.2d at 594, dismissal for failure to
prosecute is appropriate. Put simply, Plaintiff has “not manifested reasonable diligence in
pursuing” this matter, see Bomate, 761 F.2d at 714, and since she has done nothing to suggest that
she intends to prosecute his claims, they will be dismissed.
Although Plaintiff has clearly failed to pursue this case, the Court is mindful of that the
sanctions employed must be proportionate to the misconduct, and that less drastic sanctions other
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than outright dismissal must be considered. See Bonds v. District of Columbia, 93 F.3d 801, 809
(D.C. Cir. 1996), cert. denied, 520 U.S. 1274 (1997). For that reason, and as noted, this Court
provided Plaintiff with an opportunity to show cause, and further, it dismisses the Complaint
without prejudice. See James v. Nationstar Mortgage, LLC, 323 F.R.D. 85, 86 (D.D.C. 2017)
(citations omitted), appeal dismissed, No. 18-7186, 2019 WL 2419122 (D.C. Cir. Mar. 25, 2019).
IV. CONCLUSION
For all of the reasons set forth above, the Court hereby DISMISSES the Complaint, ECF
No. 1, without prejudice pursuant to Fed. R. Civ. P. 41(b) and D.C. LCvR 83.23.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff at both:
R14847-104
RRM Orlando 1
Residential Reentry Office
6303 County Road 500
Wildwood, FL 34875
AND
R14847-104
Tallahassee Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 5000
Tallahassee, FL 32314
SO ORDERED.
____/s/__________________
COLLEEN KOLLAR-KOTELLY
Date: June 27, 2023 United States District Judge
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Per the Federal Inmate Locator, this is Plaintiff’s most current address. See
https://www.bop.gov/inmateloc/ (last visited and searched on 6/26/2023).
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