                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

STANLEY J. ALLEN,                             :
                                              :
                          Plaintiff,          :       Civil Action No.:      10-0767 (RMU)
                                              :
                          v.                  :       Re Document No.:       13
                                              :
UNITED STATES,                                :
                                              :
                          Defendant.          :

                                       MEMORANDUM OPINION

                   GRANTING IN PART THE DEFENDANT’S MOTION TO DISMISS;
                      DISMISSING THE COMPLAINT WITHOUT PREJUDICE

                                         I. INTRODUCTION

        This matter comes before the court on the defendant’s motion to dismiss the pro se

plaintiff’s complaint for failure to prosecute or to comply with the court’s order and rules. For

over a year, this case has remained in limbo while the court waited on the plaintiff to clarify

whether he definitively sought to voluntarily dismiss his action, as he had originally represented

to the court. Because the plaintiff has failed to contest the defendant’s motion to dismiss, and

given the procedural history of this case as recited below, the court dismisses without prejudice

the plaintiff’s action.



                                         II. BACKGROUND

        In February 2010, the plaintiff commenced an action in the Superior Court of the District

of Columbia in response to an altercation that he had with Dr. Michael Smith, a fellow employee
at the Department of Defense. 1 Compl. ¶¶ 5-10. The plaintiff alleges that the defendant is liable

for various torts allegedly committed by Dr. Smith, namely, assault, battery, intentional infliction

of emotion distress and negligent infliction of emotional distress. See generally id. In May

2010, the defendant removed the plaintiff’s action to this court. See generally Notice of

Removal. Soon thereafter, the defendant filed a motion to dismiss for lack of jurisdiction. See

generally Def.’s Mot. to Dismiss.

        Instead of filing an opposition, however, the plaintiff filed a notice of voluntary dismissal

requesting that his case “be dismissed in its entirety without prejudice.” See Pl.’s Req. for

Dismissal at 1. In light of the plaintiff’s notice of voluntary dismissal, the court denied the

defendant’s motion to dismiss as moot. See Minute Order (Dec. 30, 2010).

        The court noted, however, that the plaintiff’s request for dismissal had failed to meet the

requirements of Federal Rule of Civil Procedure 41(a), which controls the dismissal of a civil

action by the plaintiff. Minute Order (Sept. 15, 2010). Under Rule 41(a), a plaintiff may request

dismissal by filing a stipulation of dismissal that is signed by all of the parties. See FED. R. CIV.

P. 41(a)(1). Alternatively, Rule 41(a)(2) allows a plaintiff to voluntarily dismiss a case by

requesting a court order to that effect. See id. 41(a)(2). Here, the plaintiff failed to utilize either

procedure available under Rule 41(a), instead filing a “request for dismissal” that was neither

accompanied by a motion nor a stipulation signed by all of the parties. See Pl.’s Req. for

Dismissal. Consequently, the court ordered the plaintiff to re-file his request for voluntary

dismissal according to Rule 41(a). See Minute Order (Sept. 15, 2010).




1
        Because the original defendant in this case, Dr. Michael Smith, was acting within the scope of his
        employment, the United States was substituted as defendant pursuant to 28 U.S.C. § 2679(d)(1).
        Minute Order (July 7, 2010).


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       After five months elapsed with no response from the plaintiff, the court again ordered the

plaintiff to respond to the court’s September 15, 2010 order or risk the dismissal of his case. See

Minute Order (Feb. 1, 2011). This time the plaintiff responded, cryptically explaining to the

court that he refused to provide his counsel with the “authority . . . to file a dismissal under Rule

41(a) or to otherwise file a substantive response to the Order issued on September 15, 2010.”

See Pl.’s Response ¶ 6. In response, the defendant filed a motion to dismiss with prejudice

pursuant to Rule 41(b). See Def.’s 2d Mot. to Dismiss.

       The plaintiff did not timely file an opposition to the defendant’s motion. Instead, the

plaintiff’s counsel filed a motion to withdraw as the plaintiff’s attorney, explaining that the

plaintiff and his counsel were “no longer able to effectively communicate about [the p]laintiff’s

case.” Pl.’s Atty’s Mot. to Withdraw as Atty (Mar. 28, 2011). The plaintiff simultaneously

sought an extension of time to respond to the defendant’s motion to dismiss under 41(b). Id.

The court granted the withdrawal on the condition that the plaintiff’s counsel explain to his client

that failure to meet the court’s deadline would likely result in the dismissal of the plaintiff’s case.

Minute Order (Apr. 4, 2011). Additionally, the court allowed the plaintiff an extension of time

to respond to the defendant’s motion to dismiss, ordering that the plaintiff respond to the

defendant’s motion no later than April 27, 2011. Id.

       Since that time, the plaintiff has proceeded pro se and has yet to file an opposition to the

defendant’s motion to dismiss under Rule 41(b). With the defendant’s motion ripe for

consideration, the court turns to the defendant’s arguments and the applicable legal standards.




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                                           III. ANALYSIS

      A. Legal Standard for Dismissal of a Pro Se Complaint for Failure to Prosecute

        A court acts in its discretion by dismissing a complaint, either with or without prejudice,

when a plaintiff fails to prosecute his or her case, fails to follow the rules of the court or fails to

follow the court’s orders. FED. R. CIV. P. 41(b); LCvR 83.23. Although “dismissal may be an

unduly severe sanction for a single episode of misconduct,” a court acts properly in dismissing a

case “when lesser sanctions would not serve the interest of justice.” Bristol Petroleum Corp. v.

Harris, 901 F.2d 165, 167 (D.C. Cir. 1990). In determining whether a dismissal is warranted, the

court considers “the effect of a plaintiff’s dilatory or contumacious conduct on the court’s

docket, whether the plaintiff’s behavior has prejudiced the defendant, and whether deterrence is

necessary to protect the integrity of the judicial system.” Id.

        The 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. To be clear, a

plaintiff is obligated to prosecute his lawsuit in accordance with the Federal Rules of Civil

Procedure and the local rules of this court. Clariett v. Rice, 2005 WL 3211694, at *4 (D.D.C.

2005) (“Even a pro se litigant . . . must comply with the Federal Rules of Civil Procedure.”).

               B. The Court Grants in Part the Defendant’s Motion to Dismiss

        The defendant argues that dismissal with prejudice is appropriate under Rule 41(b)

because the plaintiff failed to follow the court’s orders. Def’s Mot. to Dismiss at 4-5. The court

agrees that the plaintiff’s conduct in this case (or lack thereof) warrants dismissal. The court

warned the plaintiff through his able counsel that failure to file a response to the defendant’s

motion to dismiss would likely result in dismissal of this action. See Minute Order (Apr. 4,

2011). The court also granted the plaintiff additional time in which to file a response to the



                                                   4
defendant’s motion. Id. Yet despite these warnings and opportunities, the plaintiff has not

opposed the defendant’s motion or filed any response whatsoever. Accordingly, in light of the

plaintiff’s failure to file a timely response and in order to protect the integrity of the judicial

system, the court grants in part the defendant’s motion to dismiss.

        The court, however, denies the defendant’s request to dismiss this case with prejudice.

As noted earlier, the plaintiff had originally filed a “request of dismissal.” See Pl.’s Request for

Dismissal at 1. Presumably, the plaintiff’s original request sought dismissal by a court order

pursuant to Rule 41(a)(2), which usually provides for a dismissal without prejudice. See FED. R.

CIV. P. 41(a)(2) (“Unless the order states otherwise, dismissal under this paragraph (2) is without

prejudice.”). Further, the court takes into account that the plaintiff is now acting pro se and

should therefore be afforded some latitude in maneuvering the judicial process. Moore, 994 F.2d

at 876. Accordingly, the court dismisses without prejudice the plaintiff’s action pursuant to Rule

41(b) of the Federal Rules of Civil Procedure and Local Rule 83.23 due to his failure to

prosecute his case.



                                        IV. CONCLUSION

        For the foregoing reasons, the court grants in part the defendant’s motion to dismiss and

dismisses the complaint without prejudice. An Order consistent with this Memorandum Opinion

is separately and contemporaneously issued this 31st day of October, 2011.



                                                                        RICARDO M. URBINA
                                                                   United States District Court Judge




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