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Stevens v. United States

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

February 10, 2017

RAYFORD STEVENS, Plaintiff,
v.
UNITED STATES OF AMERICA; DR. PETER LIBERO; PA B. AREMU; and MRS. MOON, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Presently 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. (Doc. 52.)

         BACKGROUND

         Plaintiff 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.)

         Defendants 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 not happen.

         In its 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.)

         As the 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.”).

         Although 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 Judgment.

         DISCUSSION

         The 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 pauperis.

         I. Dismissal for Failure to Prosecute, for Failure to Follow this Court's Orders, and as a Discovery Sanction

         A 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);[1] 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)).

         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.

         While 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 ...


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