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Vitto v. Gramiak

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

May 17, 2017

JUSTIN VITTO, Plaintiff,
v.
TOM GRAMIAK,, individually and in their official capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's failure to comply with the Court's Order of March 24, 2017, to file an appropriate Amended Complaint. (Doc. 9.) For the reasons set forth below, I RECOMMEND the Court DISMISS Plaintiffs Complaint, (doc. 1), without prejudice for Plaintiffs failure to follow this Court's Orders and failure to prosecute, DISMISS as moot Plaintiff's Motion for Emergency Injunction and Motion for Injunction, (docs. 3, 8), and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         In his Complaint, Plaintiff listed twenty-five (25) individuals as Defendants and contended these Defendants violated his constitutional rights. (Doc. 1.) Specifically, Plaintiff asserted Defendants stalked him and his material witness, Charles Harris. Plaintiff also asserted Defendants threatened to harm him due to grievances he filed and Plaintiff having warned Defendants he would file a federal lawsuit against them. (Id. at p. 5.) Plaintiff contended Defendants tried to prevent him from filing a lawsuit. Plaintiff alleged Defendants denied him access to heat during cold weather, access to the law library, and access to the JPay kiosk. Plaintiff stated that Defendants were "stalking" his "grievances and legal mail to try to violate and suppress [his] freedom of speech to unlawfully deny access to court[.]" (Id.) In addition, Plaintiff stated "all defendants" have conspired to kill him. (Id.) Plaintiff averred Defendant John Doe poisoned his and his material witness' food trays in an effort to kill Plaintiff and his material witness.

         The Court advised Plaintiff that the claims he set forth were not related to each other and that he could not join these claims in one action unless he showed that his claims arose from "the same transaction or occurrence or series of related transactions or occurrences[.]" (Doc. 9, p. 4 (quoting Fed.R.Civ.P. 20(a).) In addition, the Court informed Plaintiff that his Complaint was "a quintessential 'shotgun pleading' which the Eleventh Circuit Court of Appeals and this Court do not permit." (Id. (quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008).). The Court instructed Plaintiff as to how he should amend his Complaint and cautioned him that, should he fail to file an appropriate Amended Complaint, his cause of action would be dismissed for failure to prosecute and failure to follow this Court's Orders. (Id. at pp. 4-5.) The Court mailed that Order to Plaintiff at the most recent address it has for him, and the Order was not returned to the Court as undeliverable or as otherwise failing to reach Plaintiff. The Court has not received any pleading from Plaintiff since he filed a Motion for Injunction on January 13, 2017. (Doc. 8.)

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's directive. For the reasons set forth below, I RECOMMEND the Court DISMISS Plaintiffs Complaint without prejudice and DENY Plaintiff leave to appeal in forma pauperis.

         I. Dismissal for Failure to Prosecute and Failure to Follow this Court's Order

         A district court may dismiss a plaintiff's 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. 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 MONAD A, 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 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). With Plaintiff having failed to file an Amended Complaint setting forth claims that arose from the same transaction or occurrence or series of related transactions or occurrences, the Court is unable to move forward with this case. Additionally, Plaintiff was given ample time to follow the Court's directive, and Plaintiff has not made any effort to do so or to inform the Court as to why he cannot comply with its directives. Indeed, Plaintiff has not taken any action in this case in four months' time.

         Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiffs Complaint, (doc. 1), for failure to prosecute and failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis ...


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