United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
Dismissal for Failure to Follow Court's Order
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)).
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.
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).
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
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.
Leave to Appeal i ...