Foster v. Clinton, (10th Cir. 1998)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LESLIE FOSTER,

Plaintiff - Appellant,

No. 97-6309

v.

(D.C. No. CIV-97-519-T)

BILL CLINTON, United States; JANET

RENO; and PAT RYAN,

(W.D. Okla.)

Defendants - Appellees.

ORDER AND JUDGMENT
name="txt*">(*)

Before ANDERSON, McKAY, and

LUCERO, Circuit Judges.

After examining Plaintiff-Appellant's brief and the appellate record, this

panel has

determined unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff-Appellant, Mr. Leslie Foster, is appealing the district court's dismissal of

his 42 U.S.C. § 1983 action. Because Plaintiff appears pro se, we construe his

pleadings

liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

On April 7, 1997, Plaintiff filed an action naming President Bill Clinton, Attorney

General Janet Reno, and United States Attorney Pat Ryan as defendants. See R., Vol. I

at

Doc. 14. Plaintiff charged that various actions of the United States, including the

celebration of Columbus Day and the failure to designate a "National Children's Day,"

violated the civil rights of this Country's children and Native American citizens. See R.,

Vol. I at Doc. 9. The district court characterized Plaintiff's complaint as an action

brought under 42 U.S.C. § 1983. See R., Vol. I at Doc. 14. The district court

dismissed

the case without prejudice on August 14, 1997, holding that Plaintiff's failure to perfect

service upon the named defendants barred resolution of the case on the merits. See

id.

Plaintiff was unable to perfect service because he was incarcerated. See Appellant's Br.

at 2. Plaintiff's section 1983 claims are unrelated to the offense for which Plaintiff was

incarcerated.

Federal Rule of Civil Procedure 4(m) requires that service of the summons and

complaint upon named defendants be made within 120 days after the filing of the action.

Plaintiff did not seek an extension of the time allowed for perfecting service. See R.,

Vol. I at Doc. 14. 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

(1962); Joplin v. Southwestern Bell Tel. Co., 671 F.2d 1274, 1275 (10th Cir. 1982);

Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979). We review the district

court's dismissal for an abuse of discretion. See Joplin, 671 F.2d at 1275.

Plaintiff alleges that officials of the United States have acted in a manner resulting

in injustice to the Native American citizens of this nation. However, in addition to the

failure to make timely service of process, this attempt to adjudicate these allegations also

raises the issue of Plaintiff's standing to bring such a cause of action. We do not reach

the issue of standing because it was not addressed by the trial court. Had it been

addressed, it would present another impediment to Plaintiff's attempt to bring this cause

of action.

We hold that the district court did not abuse its discretion in dismissing the case

without prejudice, and therefore affirm the decision of the district court for substantially

the reasons stated in its Order filed August 14, 1997.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The 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.

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