United States District Court, S.D. Alabama, Southern Division
F. MOORER UNITED STATES DISTRICT JUDGE
October 16, 2018, the magistrate judge entered a report and
recommendation which recommends this action be dismissed
without prejudice for failure to prosecute and failure to
comply with the court's orders. See Doc. 8.
Plaintiff filed a document that does not contain specific
objections, but the Court addresses them nonetheless and
considers the document in conjunction with the report and
recommendation. See Doc. 9.
Civ. P. 41(b) authorizes dismissal of a complaint for failure
to prosecute or failure to comply with a court order or the
federal rules. Gratton v. Great Am. Commc'ns,
178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a
dismissal may be done on motion of the defendant or sua
sponte as an inherent power of the court. Betty K
Agencies, Ltd. v. M/VMonada, 432 F.3d 1333, 1337 (11th
Cir. 2005). "[Dismissal upon disregard of an order,
especially where the litigant has been forewarned, generally
is not an abuse of discretion." Vil, 715
Fed.Appx. at 915 (quoting Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989)). "[E]ven a non-lawyer should
realize the peril to [his] case, when [he] . . . ignores
numerous notices" and fails to comply with court orders.
Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164,
1169 (5th Cir. 1980); see also 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.). Plaintiff was
provided numerous opportunities to respond to the Court's
order to file a new § 1983 complaint. This included a
sua sponte extension with cautionary language on the
failure to respond. See Doc. 6.
Court notes that Plaintiff filed a document with handwritten
notes on the Report and Recommendation. See Doc. 9.
In the document Plaintiff states "I'm finished
repeating my efforts trying to keep this lawsuit from dying,
too;" "extension was received by petitioner Sept.
28, 2018;" and "Voila, to you, Be on guard, My
filing cabinet begins." Id. at 1. He further
continues with "You think you have devised a conspiracy
with your clerk which will excuse you from doing your
job;" and "Your pretense at showing good faith can
be tracked and verified." Id. at 2. Finally, he
O.K. I filed a letter describing exactly what I wanted to the
clerk 7-7-2018. She purposely sent me the wrong form. That
simply act then permits the magistrate to set her own
timeline which (from beging [sic] to end) sets her own
deadline (by law) which was past [sic] by the time I got it
& shorting [sic] the lawful statute of limitations. Only
once to file within a lawful range requiring copies (before
cancelation) was 10 days. You can't get copies made on
this compound. Anyway you say "Cruise is cautioned this
is his last chance." To provide copies. "Or case
will be dismissed without prejudice. Now cite me some more
law. Better yet, go back and read the ones you cited.
Id. at 3. Even reviewing the most recent filing,
none of the statements constitute a proper objection to the
report and recommendation. Even considering those statements,
none of them remedy the deficiencies noted by the magistrate
still has not submitted a complaint on the proper § 1983
form and the Court adequately warned Plaintiff of the
consequences of not responding. Even taking true his
statement that he received the order on Sept. 28, 2018 and
yet he still did not file any documents with the court until
after the report and recommendation and even then he does not
seek to remedy the deficiency, but makes unsupported
allegations of conspiracy.
the Court finds it appropriate to exercise its "inherent
power" to "dismiss [Plaintiffs claims] sua
sponte for lack of prosecution." Link v. Wabash
R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d
734 (1962); see also Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (describing
the judicial power to dismiss sua sponte for failure
to comply with court orders).
the Report and Recommendation of the Magistrate Judge is
ADOPTED and this action is hereby
DISMISSED without prejudice for failure to
prosecute and to obey the Court's order.