United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE
17, 2017, Plaintiff filed this action pro se
pursuant to 42 U.S.C § 1983 alleging that Defendants
violated her Fourth Amendment rights when they unlawfully
arrested her. (Doc. 1). On August 11, 2017, Defendants filed
an Answer to the Complaint. (Doc. 7). Thereafter, the Court
set this matter for a Status and Scheduling conference on
September 19, 2017. (Doc. 10). In this Order, the Court also
advised the Plaintiff as follows:
The plaintiff is specifically cautioned that if she
fails to file a response as required by this order, the court
will treat her failure as an abandonment of the claims set
forth in the complaint and as a failure to prosecute her
action and the undersigned will recommended that this case be
dismissed for such failure.
(Id.). Thereafter, Plaintiff filed a Motion to
Continue. (Doc. 14). The Court granted the Motion to Continue
and reset the hearing to Thursday, September 28, 2017 by
teleconference. This Order again included the cautionary
language set out above. (Doc. 15). The Court received a
return receipt card signed by Plaintiff on September 20,
2017, demonstrating that she received this Order. (Doc. 16).
September 28, 2017, the Court held the scheduled
teleconference and Plaintiff failed to appear. Plaintiff did
not file a motion with the Court seeking a continuance of
this teleconference. Nor did Plaintiff notify the Court in
any manner that she needed the status and scheduling
conference set at a different time or on a different date.
Also, the Court set the matter by teleconference, rather than
requiring Plaintiff to appear in person, in an attempt to
relieve any burden on Plaintiff. Thus, the Court issued an
Order requiring Plaintiff show cause for her failure to
appear on or before October 13, 2017. This Order again
included the cautionary language stated above. (Doc. 17). The
Court received a return receipt card signed by Plaintiff on
October 2, 2017 demonstrating that she received this Order.
(Doc. 18). Plaintiff has again failed to respond.
Accordingly, the Court concludes this matter is due to be
dismissed for Plaintiff's failure to prosecute.
sponte dismissal for failure to prosecute has long been
recognized as within the power of the Court. Link v.
Wabash Railroad Co., 370 U.S. 626, 630-631 (1962)
(Affirming lower court's dismissal of action where
attorney failed to appear for pre-trial conference and the
district court duly considered this failure “in light
of ‘the history of this litigation.'”).
Indeed, the Link Court held that
“[t]he authority of a court to dismiss sua sponte for
lack of prosecution has generally been considered an
‘inherent power, ' governed not by rule or statute
but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.”
Court has reviewed the file to determine whether a less
drastic measure than dismissal is appropriate in this case.
After such review, it is clear that dismissal of this case is
the proper course of action.
in spite of the Court setting and resetting the Scheduling
and Status Conference and notice to Plaintiff that it would
dismiss this action for Plaintiffs failure to appear,
Plaintiff failed to appear. Thus, the Court concludes that
dismissal is proper in this action, especially considering
the cautionary language contained in both orders. Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (As a
general rule, where a litigant has been forewarned, dismissal
for failure to obey a court order is not an abuse of
discretion.); see also Tanner v. Neal, 232 Fed.Appx.
924 (11th Cir. 2007) (affirming sua sponte dismissal
without prejudice of inmate's §
1983 action for failure to file an amendment to complaint in
compliance with court's order directing amendment and
warning of consequences for failure to comply.) Accordingly,
the Court concludes that this action is due to be dismissed
above stated reasons, it is the RECOMMENDATION of the
Magistrate Judge that this case be dismissed without
prejudice. It is further
that the Plaintiff file any objections to this Recommendation
on or before October 30, 2017. Any
objections filed must specifically identify the findings in
the Magistrate Judge's Recommendation to which the party
is objecting. Frivolous, conclusive or general objections
will not be considered by the District Court. The parties are
advised that this Recommendation is not a final order of the
court and, therefore, it is not appealable.
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar
the party from attacking on appeal factual findings in the
report accepted or adopted by the District Court except upon
grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.
1982); see also Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981, ...