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Floyd v. Tool

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

January 15, 2020

EDDIE FRANK FLOYD, III, Plaintiff,
v.
MR. TOOL, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's failure to comply with the Court's November 26, 2019 Order, doc. 16. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's action. I further RECOMMEND the Court 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

         Plaintiff, proceeding in forma pauperis, filed this action against numerous Defendants, alleging violations of his constitutional rights. Docs. 1, 4. The Court, adopting the Report and Recommendation, dismissed Plaintiff's Eighth Amendment and equal protection claims, dismissed Plaintiff's claims against Defendants for monetary damages in their official capacities, and denied Plaintiff's various requests for injunctive relief. Doc. 17.

         The Court allowed Plaintiff's First Amendment claims of retaliation and interference with mail to remain pending; however, this Court noted that it could not “determine which, if any, of Plaintiff's First Amendment claims are viable against which Defendants.” Doc. 16 at 9. Accordingly, on November 26, 2019, Plaintiff was directed “to file a Second Amended Complaint within 14 days . . . with regard to his First Amendment claims of retaliation and interference with his mail . . . .” Id. at 1. The Court also informed Plaintiff that “[f]ailure to timely file a Second Amended Complaint may result in dismissal of this case.” Id. at 10. Almost 50 days have passed since this Court's November 26, 2019 Order, and Plaintiff has failed to file a Second Amended Complaint or otherwise make any filings in this matter.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's November 26, 2019 Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff's action. I also RECOMMEND the Court 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.

         I. Dismissal for Failure to Follow Court's Order

         A district court may dismiss a plaintiff's claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and 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)). 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] [w]illful disobedience or neglect of any order of the Court.”). 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). In 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.

         Plaintiff has failed to diligently prosecute his claims, as he failed to file a Second Amended Complaint, as this Court directed. Doc. 16. While the Court exercises its discretion to dismiss cases with caution, dismissal of this action without prejudice is warranted. See Coleman, 433 Fed.Appx. at 719 (upholding dismissal without prejudice for failure to prosecute, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         As an additional ground for dismissal, the Court notes that Plaintiff's remaining claims of First Amendment retaliation and interference with his mail are due to be stricken because Plaintiff did not comply with the Court's direction that he file a more definite statement with respect to these claims. See Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996) (noting district court's “inherent authority” to require party to file more definite statement); see also Fed. R Civ. P. 12(e) (“If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.”).

         For these reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's action, and I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and ENTER the appropriate judgment of dismissal.

         II. Leave to Appeal i ...


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