United States District Court, M.D. Alabama, Southern Division
STANLEY B. NEWMAN, Plaintiff,
WALLY OLSON, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
the court is the pro se complaint of Plaintiff
Stanley B. Newman. Doc. 1. Pursuant to 28 U.S.C. §
636(b)(1) this case was referred to the undersigned United
States Magistrate Judge for further proceedings and
determination or recommendation as may be appropriate. Doc.
3. For the reasons stated herein, the Magistrate Judge
RECOMMENDS that this action be DISMISSED with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure and that any pending motions be DENIED as moot.
FACTUAL AND PROCEDURAL BACKGROUND
commenced this 42 U.S.C. § 1983 action on April 19,
2018, naming as Defendant Sheriff Wally Olson. Doc. 1. At the
time of his filing, Newman was an inmate of the Dale County
Jail. Olson answered the complaint. Doc. 12.
11, 2018, the court set the case for telephonic status
conference. See Doc. 15. The court ordered the
persons having custody of Newman in the Dale County Jail to
make Newman available for the conference call and directed
the Clerk to provide a copy of the Order to the jail. Doc.
15. The Order was mailed to Newman at the Dale County address
he provided to the court. Doc. 15. On June 18, 2018, the
court's Order was returned as “Undeliverable,
” with the notation from the United States Postal
Service: “returned to sender, insufficient
address-unable to forward.” On June 20, 2018, the court
entered an Order stating that the administration of the case
cannot properly proceed if the whereabouts of Newman remain
unknown, and giving Newman until July 5, 2018 to file with
the court a current address and to show cause why the case
should not be dismissed for failure to prosecute this action.
Doc. 16. In that order, the court cautioned Newman that if he
failed to respond to the Order, the undersigned Magistrate
Judge would recommend that the case be dismissed due to
Newman's failure to keep the court apprised of his
current address. Doc. 16.
25, 2018, the court's Order was returned as
“Undeliverable” with the notation “returned
to sender-unable to forward.”
his last filing on June 4, 2018, the court has received no
filings or communication from Newman. Newman's June 4,
2018 filing was mailed in an envelope with the return address
of the Dale County Jail. Doc. 11 at 3. No. other address has
been provided to the court. Newman has had more than a month
from the court's last Order to update the court on his
current address, and has been cautioned as to the
consequences of his failure to do so, but has failed to
provide the court with his current address.
court may dismiss an action sua sponte under Rule
41(b) for failure to prosecute or failure to obey a court
order.” Brown v. Tallahassee Police Dept., 205
Fed.Appx. 802, 802 (11th Cir. 2006); see also Fed.
R. Civ. P. 41(b). Dismissal has been described as a
“sanction of last resort, ” and is
“generally reserved for cases of willful disobedience
to court orders.” St. Exchange Bank v.
Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982) (internal
quotation marks omitted). In addition to the authority vested
by Rule 41, 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.”
Id. (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962)). In the Eleventh Circuit, dismissal
with prejudice is appropriate only “where there is a
clear record of willful contempt and an implicit or explicit
finding that lesser sanctions would not suffice.”
Gratton v. Great Am. Comms., 178 F.3d 1373, 1374
(11th Cir. 2006) (internal quotation marks omitted).
being given the opportunity to provide the court with his
address, Newman has failed to do so. The case cannot proceed
if Newman, the party bringing the action, cannot be reached
by the court.
court, mindful of the consequences of a dismissal with
prejudice, has considered whether a less drastic sanction is
appropriate in this instance. Because Newman is proceeding
in forma pauperis, there appears to be no
possibility of collecting a monetary penalty from him.
Further, there is no indication that any other
non-dispositive sanction would suffice to bring Newman into
compliance with the court's orders because Newman cannot
be reached by the court. Thus, the court has little choice
but to conclude that dismissal is necessary.
for the reasons set forth above, it is the RECOMMENDATION of
the Magistrate Judge that this case be DISMISSED with
prejudice pursuant to Federal Rule of Civil Procedure 41(b)
and all pending motions be DENIED as moot.
further ORDERED that the parties are DIRECTED to file any
objections to the report and recommendation not later
than August 10, 2018. Any objections filed must
specifically identify the findings in the Magistrate
Judge's report and recommendation to which the party is
objecting. Frivolous, conclusive, or general objections will
not be considered by the District Court. The parties are