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Kavanaugh v. Lowery

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

January 14, 2020

WILLIAM DANIEL KAVANAUGH, Plaintiff,
v.
TIMOTHY LOWERY, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This closed civil matter is before the Court upon plaintiff William Daniel Kavanaugh's Motion to Re-Open Case. (ECF No. 22). For the reasons discussed below, the Court will deny the motion.

         Background

         Plaintiff initiated this action on December 3, 2018 by filing a complaint pursuant to 42 U.S.C. § 1983 against, inter alia, “Detective Osmond” and three “John Doe” law enforcement defendants. At the time he filed the complaint, he was incarcerated in Illinois at the Big Muddy River Correctional Center. Plaintiff's claims stemmed from a July 27, 2018 traffic stop and arrest. Briefly, plaintiff alleged that Osmond illegally searched his car and conducted an illegal strip search, that Doe 1 failed to intervene, and that Does 2 and 3 illegally searched his car.

         On February 7, 2019, plaintiff filed a notice of change of address with this Court, advising that his mailing address had changed to a private residence, 117 Henry Street, East Alton, Illinois, 62024. The Court conducted initial review of plaintiff's complaint, and on February 13, 2019 entered an order partially dismissing the complaint and directing that defendant Osmond be served with process.

         On March 13, 2019, “Defendant ‘Unknown Osmond,' believed to be Dustin Edwards” filed a Motion to Quash Service. Therein, he contended that plaintiff had apparently misidentified the defendant as “Unknown Osmond” when the actual identity of the defendant appeared to be “Dustin Edwards.” He provided documentation in support of his contention. He also averred he had notified plaintiff that Dustin Edwards would waive service of process if plaintiff amended the complaint to name him as a defendant.

         Plaintiff failed to respond to the motion, and on March 27, 2019, the Court sua sponte entered an order giving him additional time to do so. In that order, the Court clearly explained the issues presented by the motion, provided plaintiff a form to use to file an amended complaint, and cautioned him that his failure to timely respond to the order may result in the dismissal of his case. Plaintiff failed to respond to that order.

         On June 24, 2019, the Court entered an order granting the Motion to Quash Service. The Court also gave plaintiff an additional opportunity to prosecute his case by giving him more time to advise the Court whether he intended to do so. In that order, the Court again cautioned plaintiff that his failure to respond would result in the dismissal of his case. Plaintiff's response was due on July 8, 2019, but he filed nothing. On July 19, 2019, the Court dismissed the case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, due to plaintiff's failure to comply with the Court's March 27, 2019 and June 24, 2019 orders and his persistent failure to prosecute his case. The Court also noted that plaintiff's failure to prosecute his case against Osmond or amend his complaint to name a proper defendant left the case pending only against three “Doe” defendants who could not be served with process. Thirty-two days later, on August 20, 2019, plaintiff filed the instant motion seeking to re-open the case. In support, he avers as follows.

         Plaintiff was incarcerated in Illinois “following the illegal investigation on July 27, 2018 by Detective Dustin Edwards and the report of false facts, by Detective Osmond” to plaintiff's parole officer. (ECF No. 22 at 2). On November 28, 2018, criminal charges were filed against plaintiff in St. Louis County Circuit Court, stemming from the July 27, 2018 traffic stop. He posted bail at the St. Louis County Justice Center on an unspecified date.

         Plaintiff avers the address he provided to this Court on February 7, 2019 “was no longer my residence; however, it was my mailing address only, in which I could only retrieve my mail at the convenience of resident [name omitted], which did not work well in my favor, when it came to receiving legal mail, which included Court orders and deadlines.” Id. at 3. From “late March 2019” to “late April 2019” plaintiff was in Las Vegas, Nevada due to a family emergency. Id.

         On or about May 5, 2019, plaintiff was arrested in Illinois and incarcerated in the Alton City Jail. While there, plaintiff “did not have access to the courts, to submit a change of address and all the efforts I did make, were thwarted by authorities.” Id. at 4. Several days later, plaintiff was transferred to the Madison County Jail “where again, [plaintiff] did not have access to the courts, to submit a change of address and all the efforts I did make were thwarted by authorities.” Id. On July 19, 2019, the day this action was dismissed, plaintiff was transferred to the Macoupin County Illinois Sheriff's Department. On July 21, 2019, he submitted a notice of change of address to this Court, providing the address of the Macoupin County Sheriff's Department.

         Plaintiff avers he has tried to find information relevant to his case. He attached to the motion copies of requests he made pursuant to the Freedom of Information Act and the Missouri Sunshine Law on November 14, 2018, December 19, 2018, and August 6, 2019, seeking information about his July 27, 2018 arrest. He avers he intends to prosecute his case against Osmond because Osmond gave false information to his parole officer. Plaintiff does not mention the allegations he set forth in the complaint.

         Discussion

         Plaintiff did not frame his motion under the Federal Rules of Civil Procedure, but it can be considered the functional equivalent of a motion under Rule 60(b). Rule 60(b) allows the court to relieve a party from a final judgment for, among other reasons, mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b)(1). In the instant motion, plaintiff argues he is entitled to relief because his noncompliance was due to his failure to receive the Court's orders. Plaintiff admits he did not receive the Court's orders because he neglected to keep the Court informed of the mailing address where case-related papers should be sent, but he argues his neglect should be excused because: (1) the address he provided to this Court on February 7, 2019 was not actually his residence and he could not reliably retrieve his mail there; (2) he was with family in Las Vegas, Nevada from late March 2019 until late April 2019; and (3) from May 5, 2019 to sometime in July 2019, ...


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