United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
BORRDEN, UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint filed by Cory Lamar Ellis, a former state inmate.
In the instant complaint, Ellis alleges that the defendant
correctional officials used excessive force against him on
December 24, 2016 while he was confined at the Kilby
to the orders of this court, the defendants filed a special
report supported by relevant evidentiary materials, including
affidavits, prison reports and medical records, in which they
address Ellis' claim for relief. The reports and
evidentiary materials refute the self-serving, conclusory
allegations presented by Ellis. Specifically, the defendants
assert and the undisputed evidentiary materials indicate
that, on the evening of December 24, 2016, Defendant Thomas
Kincey observed “Inmate Ellis screaming, hallucinating
and acting irate while throwing his hands in the air in an
uncontrollable manner.” Doc. 18-4 at 2. Kincey called
for assistance on his radio and Defendants Latema Harrell and
Derrell Brooks responded. Doc. 18-2 at 1. The correctional
officers restrained Ellis, placed him in a wheelchair, and
began his transportation to the health care unit for
evaluation. During this time, Ellis began to act in an
erratic manner and “fell headfirst into the
fence.” Doc. 18-2 at 2. Under questioning by Defendant
Harrell, Ellis advised that he was “high” and
feeling “real good.” Doc. 18-2 at 2.
Donja Smith examined Ellis when he arrived at the health care
unit. Nurse Smith noted, in relevant part, as follows:
Mr. Ellis was under the influence of
flocka/flakka. When Mr. Ellis was brought into the health
care unit, he was stumbling and could not stand up of his own
Mr. Ellis was screaming out incoherently and was not making
any sense. . . .
Mr. Ellis was not responding to the commands of the
correctional officers and was very combative.
Mr. Ellis appeared to be very high on the drugs that he had
taken and was not in control of his actions and/or behavior.
Doc. 18-6 at 2 (internal paragraph numbering omitted). The
court also notes that the injuries set forth on Ellis'
body chart (Doc. 18-11), and in photographs taken of Ellis
(Doc. 18-8), are consistent with a fall into a fence, not a
beating with night sticks and handcuffs as described by Ellis
in the complaint.
light of the foregoing, the court issued an order directing
Ellis to file a response to the defendants' written
report. Doc. 19. The order advised Ellis that his failure to
respond to the report would be treated by the court “as
an abandonment of the claims set forth in the complaint and
as a failure to prosecute this action.” Doc. 19 at 1.
Additionally, the order “specifically cautioned [the
plaintiff] that [his failure] to file a response in
compliance with the directives of this order” would
result in the dismissal of this civil action. Doc. 19 at 1.
The time allotted to Ellis for filing a response in
compliance with this order expired on June 22, 2017. Doc. 26.
Ellis has failed to file a response in opposition to the
defendants' written report. The court therefore concludes
that this case should be dismissed.
court has reviewed the file to determine whether a measure
less drastic than dismissal is appropriate. See
Abreu-Velez v. Bd. of Regents of Univ. System of Ga.,
248 F.App'x 116, 117-18 (11th Cir. 2007). After this
review, the court finds that the dismissal of this case is
the proper course of action. Initially, the court notes that
Ellis is an indigent individual and therefore the imposition
of monetary or other punitive sanctions against him would be
ineffectual. Moreover, Ellis' inaction in the face of the
defendants' reports and evidence suggests a loss of
interest in the continued prosecution of this case. Finally,
the undisputed evidentiary materials submitted by the
defendants indicate that no constitutional violation
occurred. It therefore appears that any additional effort to
secure Ellis' compliance with the court's orders
would be unavailing and a waste of this court's scarce
resources. Consequently, the court concludes that Ellis'
abandonment of his claims and his failure to comply with an
order of this court warrant dismissal. See Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding
that dismissal for failure to obey a court order is not an
abuse of discretion where a litigant has been forewarned).
these reasons, it is ORDERED that this case is DISMISSED
without prejudice. It is further ORDERED that no costs are
separate Final Judgment will be entered in accordance with