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Clayburn v. Bureau of Alcohol

United States District Court, E.D. Missouri, Eastern Division

October 15, 2019




         This action is before the Court for consideration of whether it should be dismissed without prejudice for failure of plaintiff Varonica Clayburn to comply with the orders of the undersigned Magistrate Judge. Plaintiff commenced this action pro se in the Circuit Court of St. Louis County, Missouri, on May 14, 2019. There she filed a short, handwritten petition, naming as defendants the federal Bureau of Alcohol Tobacco Firearms and Explosives ("ATF"), "North County, St. Louis City, and ATT." (Doc. 2.) All of plaintiff's allegations are as follows:

I Varonica Clayburn is filing a law suit against North County for searching my home without a warrant and the ATF for kicking down my door and placing me and my children outside[, ] trashing our home and making jokes about things that was in our home and going to my child['s] school humiliating him in front of classmates and placing him under arrest for a murder charge he did not commit.

         To this document she signed her name and stated her address and telephone number. (Id.).

         The United States Attorney on behalf of federal defendant ATF removed this state court action to this Court. (Doc. 3.) The action was assigned to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636 and Eastern District of Missouri Local Rule 2.08. Until all parties consent to the exercise of plenary authority by a federal Magistrate Judge, which has not yet happened, the undersigned is authorized to rule non-dispositive matters and to recommend rulings for dispositive matters, such as a motion to involuntarily dismiss an action. See 28 U.S.C. § 636(b); E.D.Mo. L.R. 2.08.

         On July 17, 2019, defendant ATF filed a motion to dismiss plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6), because it fails to state a claim upon which relief can be granted. (Doc. 6). The undersigned reviewed the motion to dismiss and determined that plaintiff's petition was not legally sufficient on its face. (Doc. 9.)

         In a Memorandum and Order filed on August 9, 2019, the Court explained the requirements for pleading civil claims in federal district court. The undersigned concluded that plaintiff's pleading did not identify a specific cause of action or provide sufficient information to state a claim in accordance with Federal Rule of Civil Procedure 12(b)(6). The Court explained that plaintiff must include more details about the basis of her claims, including dates, as well as a demand for the relief plaintiff seeks. (Id.)

         Because plaintiff is proceeding without counsel, the undersigned did not seek to dismiss plaintiff's petition at this time, but gave plaintiff an opportunity to replace the original pleading with an amended complaint, in order to state what the law requires. The Court also determined to direct the Clerk of Court to provide plaintiff with a court-provided form on which to write her amended complaint.

         Also, the Court explained that the federal rules of civil procedure required plaintiff to set forth a short and plain statement of the claim showing her entitlement to relief, and to identify the defendants and to state the claims in separate, numbered paragraphs, each describing a single set of circumstances. Plaintiff was directed to state the date, time, place, and people involved in each incident. (Id.) The Court gave plaintiff until September 12, 2019, to file her amended complaint. (Id.)

         On September 30, 2019, when plaintiff had not complied with the August 9, 2019 Memorandum and Order, the Court ordered plaintiff to file a document not later than October 14, 2019, showing in writing why she failed to comply with the deadline to file her amended complaint. She was advised that the failure to comply with that order would result in the dismissal of her case without prejudice. (Doc. 10.)

         To date plaintiff has not filed an amended complaint or a response to the show cause order, despite being twice advised that failure to do so would result in this case being dismissed without prejudice. (Docs. 9, 10.)

         Because not all of the parties have consented to the exercise of plenary authority by a United States Magistrate Judge under 28 U.S.C. § 636(c), ORDER

         IT IS HEREBY ORDERED that the Clerk of Court reassign this action to a United States District Judge by the random selection process.

         Further, RECOMMEN ...

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