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Terrell v. Williams

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

February 5, 2018

MARCUS ANTHONY TERRELL, Plaintiff,
v.
DOUG WILLIAMS; MS. THOMPSON; CAPTAIN WICKER; JOHN DOE OFFICIALS; OFFICER BEAR; and UNKNOWN INSURANCE PROVIDERS, 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. For the following reasons, the Court DENIES Plaintiff's Motions to Proceed in Forma Pauperis before this Court. (Docs. 2, 6, 10.) Additionally, I RECOMMEND that the Court DISMISS without prejudice Plaintiff's Complaint, as amended, (docs. 1, 9), for Plaintiff's failure to prosecute and failure to follow this Court's Order, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         On August 1, 2017, Plaintiff proceeding pro se, filed a Complaint, pursuant to 42 U.S.C. § 1983, contesting the conditions of his confinement while housed at Smith State Prison in Glennville, Georgia. (Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) The Court deferred ruling on that Motion and directed Plaintiff to amend his Complaint because “Plaintiff's 164-page Complaint with allegations against a multitude of officials-named and unnamed-is a shotgun pleading and, in its current form, fails to state a viable claim.” (Doc. 5, p. 4.)

         Plaintiff filed an Amended Complaint, (doc. 9), and I recommended dismissal because “Plaintiff's Amended Complaint is still a shotgun pleading, and the Court cannot tell which allegations of fact are intended to support which claim(s) for relief.” (Doc. 14, p. 6 (citations and quotations omitted).) However, Plaintiff filed Objections to this Report and Recommendation, explaining that many of incidents were related because they were retaliatory actions taken after Plaintiff filed grievances regarding Smith State Prison's mail policy. (Doc. 15, p. 6.) Accordingly, the Court provided Plaintiff with yet another opportunity to amend his Complaint. (Doc. 17.)

         The Court again provided detailed and specific instructions regarding how to file a properly amended complaint. (Id. at p. 3.) The Court further warned Plaintiff that a failure to properly amend would result in dismissal. (Id.) Despite these detailed instructions and warnings, Plaintiff failed to file any amendment. Indeed, the Court's Order directing Plaintiff to amend was returned as undeliverable because Plaintiff has since been released from prison. (Doc. 18.) However, Plaintiff has not filed a notice of change of address with the Court or taken any action in this case for over three months.

         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 that the Court DISMISS without prejudice Plaintiff's Complaint 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 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 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).

         The Court issued an Order directing Plaintiff to file a Second Amended Complaint and provided specific instructions as to how Plaintiff could amend to state a plausible claim. (Doc. 17, p. 3.) The Court warned Plaintiff that, if he “fail[ed] to abide by this directive, the Court will dismiss this case for failure to prosecute and failure to follow a Court Order.” (Id. at pp. 3-4.) However, Plaintiff ignored the Court's instructions entirely and failed to submit a Second Amended Complaint. Plaintiff was given ample time to follow the Court's directive but failed to make any effort to do so. Additionally, with Plaintiff having failed to update the Court with his current address, the Court has no means by which it can communicate with Plaintiff. Finally, Plaintiff has failed to diligently prosecute his claims, as he has not taken any action in this case in over three months.

         Accordingly, the Court should DISMISS without prejudice Plaintiff's Complaint, as amended, (docs. 1, 9), for failure to prosecute ...


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