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Arledge v. Lovell

United States District Court, M.D. Alabama, Northern Division

March 5, 2018

SHELBY NICHOLE ARLEDGE, et al., Plaintiffs,
v.
TERRI BOZEMAN LOVELL, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE [1]

          Susan Russ Walker, United States Magistrate Judge

         On February 6, 2018, the court ordered the plaintiffs to file an amended complaint on or before February 26, 2018. See Doc. 4. In that order, the court found as follows:

The court has conducted a review of the pro se plaintiffs' complaint.[2]See Doc. 1. It has identified several deficiencies in the complaint, including the plaintiffs' failure to allege any facts or wrongdoing by the named defendants, to state clearly the basis for subject matter jurisdiction pursuant to 28 U.S.C. § 1332, and to limit this civil complaint to civil causes of action, rather than comingling purported criminal charges. The court cannot discern from the 58-page complaint whom the plaintiffs are suing, for what reason, and what relief is sought. Moreover, insofar as the plaintiffs attempt to bring claims for others, the plaintiffs do not state their legal authority to bring such claims on behalf of third parties.
Although the court is required to construe a pro se litigant's pleadings liberally, it does not have “license to serve as de facto counsel for a party ... or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). The court is also required to ensure that it has subject matter jurisdiction over every case, and the source of federal jurisdiction is not evident from the face of the complaint.[3]

Doc. 4 at 1-2 (footnotes in original). The court determined that, “At present, plaintiffs' complaint merits dismissal for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.” Id. at 2. The plaintiffs were ordered to file an amended complaint that complies with the Federal Rules of Civil Procedure and that clearly establishes a basis for the court's subject matter jurisdiction.

         The plaintiffs were served with a copy of the February 6, 2018, order. See Doc. 5 (Jackie Smith served on February 7, 2018); Doc. 6 (Shelby Nichole Arledge served on February 7, 2018); Doc. 8 (Michael Everet-Dennison, Jr. served on February 12, 2018). The plaintiffs did not file a motion for an extension of the February 26 deadline, and they failed to file an amended complaint. Since the February 6, 2018 order, the plaintiffs have not taken any action on the record in this proceeding.

         I. Discussion

         A. Lack of Subject Matter Jurisdiction

         For the reasons discussed in the February 6, 2018 order, this court lacks subject matter jurisdiction over this controversy. The plaintiffs have failed to meet their burden of demonstrating subject matter jurisdiction, see Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010), and a court without subject matter jurisdiction is powerless to act. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1281 (11th Cir. 2012) (quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869)). Accordingly, this cause is due to be dismissed for lack of subject matter jurisdiction.

         B. Plaintiffs' Failure to Prosecute and Follow the Court's Directives

         In addition, assuming arguendo that the plaintiffs could show subject matter jurisdiction through the allegations of the original complaint, this matter is due to be dismissed because of the plaintiffs' lack of prosecution. The plaintiffs were cautioned that, if they failed to file an amended complaint by the February 26 deadline, the undersigned Magistrate Judge may recommend “that this matter be dismissed for lack of prosecution.” Doc. 4 at 5 (bold text from original omitted). This warning resulted in no action.

         “The court may dismiss an action sua sponte under [Federal Rule of Civil Procedure] 41(b) for failure to prosecute or failure to obey a court order.” Brown v. Tallahassee Police Dept., 205 F. App'x 802, 802 (11th Cir. 2006) (citing Fed.R.Civ.P. 41(b); Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)).[4] In addition to the authority vested in the court by Rule 41 of the Federal Rules of Civil Procedure, the power to dismiss an action “is inherent in a trial court's authority to enforce its orders and ensure prompt disposition of legal actions.” State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). However, “dismissal of an action with prejudice is a sanction of last resort, applicable only in extreme circumstances … [it] is generally reserved for cases of willful disobedience to court orders.” Id. (citations and internal marks omitted).

         The plaintiffs were warned that a dismissal of this cause could be forthcoming if they did not respond to the February 6, 2018 order. In addition, the plaintiffs have ignored two notices of deficiency - sent by the Clerk of Court on February 1 and February 13, 2018 - regarding the plaintiffs' failure to file required conflict statements. See Doc. 2; Doc. 7. Because the plaintiffs appear to be unwilling to follow the court's orders and policies, the court cannot “achieve the orderly and expeditious disposition” of this cause. Lopez, 570 F.2d at 544. As the plaintiffs have taken no action on the record since they filed their complaint on January 31, 2018, and did not file a response to the Clerk's notices of deficiency and the February 6, 2018 order, the court concludes that the plaintiffs have abandoned this lawsuit.

         “The power to dismiss for want of prosecution should be used sparingly and only when less drastic alternatives have been explored.” Lopez, 570 F.2d at 544 (citing Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), cert. denied, 429 U.S. 1107 (1977)). The court has explored lesser sanctions, but no sanction or other court action except for dismissal will likely produce results as, as in this case, plaintiffs have demonstrated an ...


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