United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants' Motion to Dismiss
Plaintiff's Complaint for Lack of Prosecution and Failure
to Comply with Court Orders. (Doc. 39.) Plaintiff filed a
Response. (Doc. 42.) For the reasons which follow, I
RECOMMEND the Court GRANT Defendants' Motion, DISMISS
without prejudice Plaintiff's Complaint, and DIRECT the
Clerk of Court to enter the appropriate judgment of dismissal
and CLOSE this case. I also RECOMMEND the Court DISMISS as
moot Defendants' pending Motion for Summary Judgment and
DENY Plaintiff leave to appeal in forma pauperis.
The Court DISMISSES as moot Plaintiff's Motion for Order
to Require Defendants to provide him with Copies of Laws.
filed this cause of action in December 2014 pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346 and
2671, et seq. (“FTCA”), and Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and alleged
Defendants' actions caused him to lose vision in his left
eye. (Doc. 1.) Defendants filed an Answer to Plaintiff's
Complaint on February 8, 2016, (doc. 21), and the Clerk of
Court entered a Scheduling Notice on this same date advising
the parties that discovery was to close on June 27, 2016,
(doc. 22). Defendants moved to amend the Scheduling Notice as
to the expert disclosure deadlines, and the Court granted
this motion. (Doc. 27.) Plaintiff then filed a Motion for
Extension of Time to Complete Discovery. (Doc. 28.) The Court
granted Plaintiff's Motion and set the deadline for the
close of discovery as July 27, 2016. (Doc. 30.)
filed a Motion to Compel and for Sanctions, arguing that
Plaintiff failed to participate in discovery. (Doc. 32.)
Plaintiff then filed a Motion for Reconsideration of the
Court's May 26, 2016, Order granting Defendants'
Motion to Amend the Scheduling Notice as to the expert
disclosure deadlines. (Doc. 33.) The Court granted both
portions of Defendants' Motion and deferred ruling on
Plaintiff's Motion for Reconsideration. (Doc. 35.) In
response, Plaintiff filed a Motion for Extension of Time, to
which Defendants responded. (Docs. 38, 40.) In his Motion for
Reconsideration, Plaintiff sought reconsideration of the
Court's Order regarding the expert disclosure deadlines.
Plaintiff maintained that he should be allowed the
opportunity to obtain counsel and an expert to assist him in
this case. (Doc. 33, p. 2.) Relatedly, in his Motion for
Extension of Time, Plaintiff once again sought additional
time to obtain counsel to assist him in this case. Plaintiff
maintained he has a limited education, and the only reason he
was able to commence this cause of action is because he had
the assistance of a fellow inmate. However, that inmate was
transferred from the Federal Correctional Institution in
Jesup, Georgia, (“FCI Jesup”). (Doc. 38, p. 2.)
Plaintiff stated his request was made in good faith and was
not designed or intended to delay or prolong the litigation.
(Id. at p. 5.) Additionally, Plaintiff asserted he
would diligently abide by any and all future instructions
from the Court. (Id.) As set forth below, this did
August 12, 2016, Order, the Court found Plaintiff's
course of conduct in this case showed a disregard for this
Court's directives and belied Plaintiff's
contentions. (Doc. 35.) In granting Defendants' Motion to
Compel, the Court specifically found that Plaintiff did not
answer Defendants' discovery requests, as previously
instructed, nor did he respond to Defendants' Motion.
(Doc. 35, p. 4 (quoting Doc. 11, p. 15).) The Court again
instructed Plaintiff to respond to Defendants' discovery
requests within ten (10) days of its August 12, 2016, Order.
(Id.) Plaintiff was forewarned that his failure to
follow this Court's directives would result in the
dismissal of this cause of action as a sanction. Id.
Unfortunately, Plaintiff failed to heed this warning. On
September 16, 2016, the Court denied Plaintiff's Motions
for Extension of Time and once again noted his disregard for
this Court's Orders. (Doc. 43.)
Court has informed Plaintiff, his inability or lack of desire
to respond appropriately to this Court's instructions-for
whatever reason-will no longer be tolerated. (Doc. 43, p. 3.)
Plaintiff is a pro se litigant, and as such, his
pleadings are entitled to some measure of leniency which is
not applicable to those litigants who are represented.
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.
2006) (“Pro se pleadings are held to a less
stringent standard than pleadings drafted by
attorneys.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff is still bound by this Court's directives and
all applicable procedural rules. McNeil v. United
States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel.”).
Defendants filed a Motion for Summary Judgment, they have
also filed a Motion to Dismiss based on Plaintiff's
failure to prosecute his claims and his failure to comply
with this Court's Orders. Because the Court agrees that
Plaintiff has not prosecuted his claims or complied with this
Court's Orders, the Court addresses Defendants'
Motion to Dismiss rather than their Motion for Summary
Court must now determine how to address Plaintiff's
failure to comply with this Court's Orders and his
failure to prosecute his claims. For the reasons set forth
below, I RECOMMEND that the Court GRANT Defendants'
Motion to Dismiss, DISMISS without prejudice Plaintiff's
Complaint, and DENY him leave to appeal in forma
Dismissal for Failure to Prosecute, for Failure to Follow
this Court's Orders, and as a Discovery
district court may dismiss a plaintiff's claims for
failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) and the
court's inherent authority to manage its docket. Link
v. Wabash R.R. Co., 370 U.S. 626 (1962); 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 MONADA, 432 F.3d 1333,
1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for
the involuntary dismissal of a plaintiff's 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. Tallahassee
Police Dep't, 205 F. App'x 802, 802 (11th Cir.
2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458
(11th Cir. 1983)).
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.
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action 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 ...