Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Conner v. Bailey

United States District Court, M.D. Georgia, Macon Division

March 7, 2018

ROGER LEE CONNER, JR., Plaintiff,
v.
TAMMY BAILEY, Defendant.

          RECOMMENDATION

          THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, proceeding pro se, brought the above-styled action pursuant to 42 U.S.C. § 1983 on January 26, 2017. (Doc. 1). In the Court's August 24, 2017 Order, the Court ordered Plaintiff to diligently prosecute his Complaint, or face the possibility that it would be dismissed for failure to prosecute. (Doc. 12, pp. 7-8, 10).

         Plaintiff's last contact with the Court was on August 16, 2017, when Plaintiff filed his recast complaint. (Doc. 11). On October 27, 2017, Defendant Bailey filed a Motion to Dismiss.[1](Doc. 21). The Court notified Plaintiff of the Motion, informed Plaintiff of his rights and obligations in responding to Defendant's Motion, and ordered Plaintiff to respond. (Doc. 20). Plaintiff did not file a response to Defendant's Motion.

         On January 22, 2018, Defendant Bailey filed a supplemental Motion to Dismiss, arguing that Plaintiff's Complaint should be dismissed as Plaintiff has failed to diligently prosecute his case. (Doc. 25). The Court notified Plaintiff of Defendant's supplemental Motion to Dismiss, informed Plaintiff of his rights and obligations in responding to the Motion, and ordered Plaintiff to respond. (Doc. 26). As of the date of this Recommendation, Plaintiff has not filed a response.

         Under Rule 41(b) of the Federal Rules of Civil Procedure, a case may be dismissed upon a determination of a “clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Litigants proceeding pro se are not exempt from this requirement of diligent prosecution. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). The court's inherent power to dismiss cases in which the plaintiff has failed to diligently prosecute his action “is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash R.R., 370 U.S. 626, 629-630 (1962); see also Mosley v. Knighton, No. 1:15-cv-141(WLS), 2016 WL 2889019, *2 (M.D. Ga. May 17, 2016) (“A court may also dismiss an action for a plaintiff's failure to prosecute sua sponte via the inherent powers ‘vested in courts to manage their own affairs so as to achieve orderly and expeditious disposition of cases.'”) (quoting Link, 370 U.S. at 630-31). “[A] court may only order dismissal when ‘(1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.'” Mosley, 2016 WL 2889019, at *2 (quoting World Thrust Films, Inc. v. Intl'l Fam. Entm't, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995)).

         As of the date of this Recommendation, Plaintiff has not filed any response to Defendant's initial Motion to Dismiss, Defendant's supplemental Motion to Dismiss, or complied with the Court's Orders, and has not made contact with the Court in over six months.

         A review of this entire action reveals a clear record of delay or willful contempt on the part of Plaintiff. First, the record establishes that Plaintiff has failed to make contact with the Court in over six months, establishing a failure to diligently prosecute his Complaint. Additionally, Plaintiff has failed to respond to Defendant's initial Motion to Dismiss or supplemental Motion to Dismiss. Further, Plaintiff did not comply with the Court's Orders to respond to Defendant's Motions. The Court finds that lesser sanctions will not suffice. Thus, the undersigned RECOMMENDS that Plaintiff's case be DISMISSED without prejudice[2] for his failure to prosecute, and for his failure to comply with the Court's Orders.

         Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge for clear error.

         The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”

         SO RECOMMENDED.

---------

Notes:

[1] Defendant Bailey effectively filed her Motion to Dismiss on October 27, 2017; however, the Motion was not filed in the correct PDF format as required by this Court. (Doc. 18; see Clerk's entry dated October 30, 2017). Defendant Bailey refiled her motion in the correct format on November 1, 2017. (Doc. 21). The refiling of the motion did not affect the timeliness or effectiveness of the motion.

[2] The undersigned recommends Plaintiff's Complaint be dismissed without prejudice. However, the effect of dismissal of Plaintiff's Complaint may be with prejudice if the statute of limitations has run on Plaintiff's claims, which may bar Plaintiff from refiling his Complaint. It is not entirely clear from the record whether ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.