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Thomas v. Rosar

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

July 22, 2019

DONTA LEE THOMAS, Plaintiff,
v.
CHRIS ROSAR, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brought this action under 42 U.S.C. § 1983 while confined in pre-trial detention at the Coffee County Jail in Douglas, Georgia, to challenge certain conditions of his confinement. Doc. 1. After a thorough and careful review of the docket, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, doc. 1, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to proceed in forma pauperis on appeal.[1] I DENY as moot Plaintiff's Motion in Limine and Motion for a Pretrial Hearing, docs. 4, 5.

         BACKGROUND

         Plaintiff filed this action on February 5, 2018, while confined in pre-trial detention. Doc. 1. Unlike most incarcerated litigants, Plaintiff paid the filing fee instead of filing a motion to proceed in forma pauperis.[2] Doc. 1-1. In his Complaint, Plaintiff named as Defendants Judge Andrew Spivey and Detective Chris Rosar. Doc. 1 at 1. However, Plaintiff failed to perfect timely service on Defendant Rosar or Defendant Spivey, and I ordered Plaintiff to show cause for his failure to do so. Doc. 6. On April 30, 2019, I found good cause existed to extend the time for service on Defendant Rosar, but I recommended the Court dismiss Plaintiff's claims against Judge Spivey because the claims were barred by judicial immunity. Doc. 9 at 4-6; Doc. 11. I ordered Plaintiff to perfect service on Defendant Rosar and submit proof to the Court within 60 days of the April 30, 2019 Order and Report and Recommendation. Doc. 9 at 4. Additionally, I warned Plaintiff that failure to do so may result in the dismissal of his action. Id.

         The Clerk's Office mailed a copy of the April 30, 2019 Order and Report and Recommendation to Plaintiff at the last address Plaintiff provided to the Court, but the post office returned the mail as undeliverable. Docs. 8, 10. On May 30, 2018, the Court adopted the April 30, 2019 Order and Report and Recommendation, and the copy of the Court's Order mailed to Plaintiff was not returned as undeliverable. Doc. 11. In that Order, the Court cautioned Plaintiff that “[f]ailure to serve Defendant Rosar within the time period set forth in the Magistrate Judge's April 30, 2019 Order and Report and Recommendation will result in the dismissal of Plaintiff's claims against Rosar and, thus, the entirety of this action.” Id. at 2. Additionally, the Court warned Plaintiff that failure to provide correct contact information to the Court could, similarly, result in the dismiss of his Complaint. Id. However, Plaintiff failed to provide the Court with any proof of service upon Defendant Rosar and failed to update his address.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's directive and Plaintiff's failure to serve Defendant Rosar.

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

         A district court may dismiss claims sua sponte pursuant to either Federal Rule of Civil Procedure 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 Fed.Appx. 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)).[3] 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 Fed.Appx. 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 Fed.Appx. 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).

         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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. at 619; see also Coleman, 433 Fed.Appx. at 719; Brown, 205 Fed.Appx. at 802-03.

         While the Court exercises its discretion to dismiss cases with caution, dismissal of this action without prejudice is warranted. See Jackson v. Warden, FCC Coleman-USP, 259 Fed.Appx. 181, 182 (11th Cir. 2007) (dismissing plaintiff-inmate's complaint when Plaintiff “failed to serve the defendants properly” when the court warned plaintiff failure to effectuate proper service could result in dismissal); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute § 1983 claims, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal). Despite two warnings that his case would be dismissed if Plaintiff did not file proof of service upon Defendant Rosar within the extended time period provided, Plaintiff still failed to do so. Indeed, Plaintiff has not taken any action in this case since filing his notice of change of address on April 8, 2019. Doc. 8. Plaintiff was given ample time to follow the Court's directives, but he has not made any effort to do so or to inform the Court as to why he cannot comply with its directives. Accordingly, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint for failure to follow the Court's Orders.

         II. Dismissal for Failure to Perfect Service

         Because Plaintiff is not proceeding in forma pauperis in this action, he is responsible for serving process on Defendants. Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). Plaintiff filed this action on February 5, 2018. Doc. 1. Rule 4(m) of the Federal Rules of Civil Procedure required Plaintiff to perfect service on Defendants within 90 days after filing his Complaint. Fed.R.Civ.P. 4(m). Approximately one year after filing his Complaint, the Court ordered Plaintiff to show good cause for his failure to do so. Doc. 6. Finding Plaintiff's failure occurred due to a genuine misunderstanding of the Rules, the Court extended the time for service for 60 days. Doc. 9 at 2-4; Lepone-Dempsey v. Carroll Cty. Comm'rs, 476 F.3d 1277, 1282 (11th Cir. 2007) (finding courts must consider whether “circumstances warrant an extension of time” for service before dismissing without prejudice). However, Plaintiff failed to file proof of service with the Court within the extended time period granted. Plaintiff provided no reason to the Court for his failure to do so.

         “Because service of process is a jurisdictional requirement, the Court lacks personal jurisdiction over a defendant who has not been properly served . . . .” Martin v. U.S. Bank Nat'l Ass'n, No. 3:14-cv-69, 2014 WL 12538167, at *3 (N.D.Ga. Oct. 8, 2014). Upon examination of the record, the Court finds no facts exist which would justify yet another good cause extension of service. See Marcus v. Postmaster Gen., U.S. Postal Serv. Se. Area, 461 Fed.Appx. 820, 822 (11th Cir. 2011) (finding no error in dismissing without prejudice for failure to timely effectuate service after the plaintiff failed to provide proof of service ...


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