United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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
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.
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.)
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.
Dismissal for Failure to Prosecute and Failure to Follow this
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); 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)).
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 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
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.
Leave to Appeal in Forma Pauperis
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 ...