Anaeme v. Florida Department of Corrections

125 F. App'x 265

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 2005
• Docket: 04-2237
• Status: Unpublished

Opinion

ORDER AND JUDGMENT **

PAUL J. KELLY, JR., Circuit Judge.

Mr. Chibueze Anaeme, a pro se litigant, appeals from the district court’s sua sponte dismissal without prejudice of his civil rights claim for failure to prosecute because he failed to properly serve the numerous Defendants. Trial courts have the discretion to dismiss a case sua sponte for want of prosecution. See Fed.R.Civ.P. 4(m); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We review for an abuse of discretion. Scott v. Hern, 216 F.3d 897, 912 (10th Cir.2000). We affirm.

Federal Rule of Civil Procedure 4(m) provides that a district court may dismiss a case without prejudice where service of process is not effectuated within 120 days of filing the complaint. Here, nearly six months passed between the time Mr. Anaeme filed his complaint and when the district court issued its notice of impending dismissal alerting Mr. Anaeme that proper service had not been established. Upon receiving the court’s notice, Mr. Anaeme failed to establish proper service or any cause for why the case should be retained.

Mr. Anaeme contends that he proceeded in the lawsuit as if he had effectuated proper service and filed motions pertaining to the Defendants non-response. He also maintains that pursuant to the district court’s notice of impending dismissal, he called the courtroom deputy (the bottom of the form advises that “inquiries regarding this notice should be directed to” the named courtroom deputy with phone number) within the time allowed to cure the service problem. While this might give us pause as implying that the service problem could be remedied with a simple phone call, Mr. Anaeme does not so argue, nor does he argue that he was misled. Cf. Espinoza v. United States, 52 F.3d 838, 842 (10th Cir.1995) (district court should consider the difficulties inherent in the service rules for pro se litigants).

AFFIRMED.

** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.