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Mitschell v. Brewton

United States District Court, S.D. Georgia, Statesboro Division

July 20, 2015

ANDREW MICHAEL MITSCHELL, Plaintiff,
v.
MRS. JANET BREWTON; DR. DEAN C. BROOME; STEVE NICOLOU; and RAY SABINE, Defendants.

ORDER and REPORT AND RECOMMENDATION

R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Plaintiffs failure to follow the Court's Order, dated June 18, 2015, directing Plaintiff to file a legible copy of his Amended Complaint within thirty days. (Doc. 23.) Also before the Court are several Motions filed by Plaintiff: a Motion for an Emergency Physical (doc. 5), a Motion for a Court Order to Produce (doc. 6), a Motion to Appoint Counsel (doc. 7), a Motion for Hearing (doc. 8), a Motion for Temporary Restraining Order (doc. 9), a Motion for Permanent Injunction (doc. 10), a Motion for Temporary Restraining Order and Motion for Preliminary Injunction (doc. 21), and a Motion for Emergency Hearing on Injunction and Restraining Order (doc. 25). For the following reasons, the undersigned RECOMMENDS that Plaintiffs claims (doc. 1) be DISMISSED without prejudice for failure to prosecute. The undersigned further RECOMMENDS that Plaintiffs Motion for Permanent Injunction (doc. 10) and Motion for Temporary Restraining Order (doc. 9) be DISMISSED as moot or, alternatively, DENIED, and that the Motion for Temporary Restraining Order and Motion for Preliminary Injunction (doc. 21) be DISMISSED as moot. Lastly, the undersigned ORDERS that Plaintiffs remaining Motions (docs. 5-8, 25) are hereby DISMISSED as moot.

BACKGROUND

On February 25, 2015, Plaintiff, proceeding pro se, filed an Emergency Petition contesting certain conditions of his confinement while housed at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) On that same day, Plaintiff filed many of the Motions currently pending before the Court-requesting, in pertinent part, an emergency physical, the production of documents, the appointment of counsel, a hearing, a temporary restraining order, and a permanent injunction. (Docs. 5-10.) Upon the Court's docketing of the Emergency Petition as a Complaint filed pursuant to 42 U.S.C. § 1983, Plaintiff filed a Motion to Amend/Correct Complaint on May 6, 2015, seeking to refile his claims on the appropriate Section 1983 form (doc. 15), and submitted a proposed Amended Complaint to that end on May 21, 2015 (doc. 19). Plaintiff then filed Motions requesting a temporary restraining order and preliminary injunction on June 5, 2015 (doc. 21), and moved for an emergency hearing on those Motions on July 13, 2015 (doc. 25).

In an Order dated June 18, 2015, the Court granted Plaintiffs Motion to Amend/Correct Complaint. (Doc. 15.) The Court noted that Plaintiffs original Complaint appeared to relate to his medical treatment at Georgia State Prison but that his proposed Amended Complaint was largely illegible, such that the Court could not decipher the nature of his allegations regarding that treatment for the purposes of conducting the requisite initial review under 28 U.S.C. § 1915A and ruling on the pending Motions. (Id. at p. 1 (citing Doc. 1, pp. 3-5; Doc. 19, pp. 5-16).) Accordingly, the Court ordered Plaintiff to file a legible copy of his Amended Complaint within thirty days. (Id. at pp. 1-2.) The Court further cautioned, "Plaintiffs failure to respond appropriately to this Order may result in the dismissal of his Complaint." (Id. at p. 2.)

On June 29, 2015, Plaintiff filed a Notice indicating, among other things, that he does not intend to file another copy of his Amended Complaint. (See Doc. 24, ¶¶ 6-7, 9.) Specifically, Plaintiffs Notice maintains that the Court's Order "has placed an undue burden on [Plaintiff] by requiring [him] to resubmit the [A]mended [C]omplaint so [the Court] can hopefully read it." (Id. at 1) 6.) Plaintiff further states that his handwriting "is as good as it gets" and that he does not have the time or resources to type or rewrite his Amended Complaint. (Id. at ¶¶ 7, 9.) Indeed, Plaintiff did not file a legible copy of his Amended Complaint before the thirty-day period expired on July 18, 2015, or at any time prior to the date of this Order and Report and Recommendation.

DISCUSSION

The Court must now determine how Plaintiffs failure to file a legible copy of his Amended Complaint affects the disposition of his potential Section 1983 claims and his pending Motions. The Court will address these issues in turn.

I. Plaintiffs Complaint (Doc. 1)

Plaintiffs Section 1983 Complaint should be dismissed without prejudice for failure to prosecute. A district court may dismiss a plaintiffs claims sua sponte pursuant to either Federal Rule of Civil Procedure 41(b) ("Rule 41(b)") or the court's inherent authority to manage its docket. Coleman v. St. Lucie Cty. Jail 433 F.App'x 716, 718 (11th Cir. 2011) (citing Fed.R.Civ.P. 41(b) and Betty K Agencies. Ltd. v. M/V MONAD A. 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the involuntary dismissal of a plaintiffs claims where he has failed to prosecute those claims, comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed.R.Civ.P. 41(b); see also Coleman, 433 F.App'x at 718; Sanders v. Barrett, No. 05-12660, 2005 WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)); cf Local R. 41.1(b) ("[T]he assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice[] . . . [based on] willful disobedience or neglect of any order of the Court." (emphasis omitted)). Additionally, a district court's "power to dismiss is an inherent aspect of its authority to enforce its orders and ensure prompt disposition of lawsuits." Brown v. Tallahasse Police Dep't, 205 F.App'x 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).

It is true that dismissal with prejudice for failure to prosecute is a "sanction ... to be utilized only in extreme situations" and requires that a court "(1) conclud[e] a clear record of delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser sanctions would not suffice." Thomas v. Montgomery Cty. Bd. of Educ, 170 F.App'x 623, 625-26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem. Ass'n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F.App'x 616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are afforded greater discretion in dismissing claims in this manner. Taylor, 251 F.App'x at 619; see also Coleman, 433 F.App'x at 719; Brown, 205 F.App'x at 802-03.

Plaintiff has not engaged in such a "clear pattern of willful contempt" so as to warrant a dismissal of his claims with prejudice at this time. Cf Thomas, 170 F.App'x at 626, 624 & n.1, 626 (upholding dismissal with prejudice, where plaintiff had engaged in "clear pattern of willful contempt" by ignoring four court orders to file amended complaint and failing to appear at two mandatory conferences). Even so, Plaintiff failed-and, in fact, overtly refused-to file another copy of his Amended Complaint by July 18, 2015, as required by this Court's Order. (See Doc. 24.) While Plaintiff asserts in his Notice that his handwriting "is as good as it gets, " the Notice itself evidences his ability to write in a manner that is at least somewhat readable. (See id.) Equally unpersuasive is Plaintiffs contention that he did not have the time to rewrite his Amended Complaint, as the Court gave Plaintiff ample time to remedy his deficient Amended Complaint, and Plaintiff was able to complete and file his Notice within that time period. (Id.)

Rather, it appears that Plaintiff, without any substantial justification, chose to defy the Court's unequivocal instructions to file another Amended Complaint, and its clear warning that a failure to do so could result in dismissal, and to insist upon proceeding on the deficient Amended Complaint. (See id.) Under these circumstances, a dismissal without prejudice is warranted. See Coleman, 433 F.App'x at 719 (upholding dismissal without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Taylor, 251 F.App'x at 620-21 (upholding dismissal without prejudice for failure to prosecute, because plaintiffs insisted on going forward with deficient amended complaint rather than complying, or seeking an extension of time to comply, with court's order to file second amended complaint); Brown, 205 F.App'x at 802-03 (upholding dismissal without prejudice for failure to prosecute Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

Thus, Plaintiffs Section 1983 Complaint (doc. 1) should be DISMISSED without prejudice for failure to prosecute, ...


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