United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
Sonja
F. Bivins, United States Magistrate Judge.
This
action is before the Court on review. On September 6, 2018,
Plaintiff Kenneth Bernard Hill, an Alabama state inmate
proceeding pro se, filed a complaint seeking relief
under 42 U.S.C. § 1983 (Doc. 1) and a motion to proceed
without prepayment of fees (Doc. 2). The case was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R) for appropriate
action.
In an
Order dated October 5, 2018, the Court observed that
Hill's complaint was not on the form required by this
Court for prisoner actions under 42 U.S.C. § 1983, and
that his motion to proceed without prepayment of fees was
unsigned. (Doc. 3 at 1). Accordingly, the Court directed Hill
to re-file his complaint on the complaint form required by
this Court for § 1983 prisoner actions by October 26,
2018, and provided him with a copy of the Court form required
for § 1983 prisoner complaints. (Id.). The
Court also directed Hill to sign and return his motion to
proceed without prepayment of fees to the Court by October
26, 2018. (Id. at 2). Hill was cautioned that
failure to comply with the Court's Order within the
prescribed time or to advise the Court of a change in address
would result in the dismissal of this action without
prejudice for failure to prosecute and to obey the
Court's Order. (Id.).
Although
Hill signed and timely returned his motion to proceed without
prepayment of fees (Doc. 4), he did not re-file his complaint
on the Court's form for § 1983 prisoner actions as
directed. Accordingly, in an Order dated December 7, 2018,
the Court again directed Hill to re-file his complaint on the
Court's form for § 1983 prisoner actions by January
7, 2019. (Doc. 6 at 2). Hill was again provided with the
Court's required form for § 1983 prisoner
complaints. (Id.). Hill was also again cautioned
that failure to comply with the Order within the prescribed
time or to advise the Court of a change in address would
result in the dismissal of this action without prejudice for
failure to prosecute and to obey the Court's Order.
(Id.). Notwithstanding, Hill failed to re-file his
complaint on the Court's form as directed.
Consequently,
in a subsequent Order, dated January 29, 2019, the Court
directed Hill to show cause, by February 19, 2019, for his
repeated failure to comply with the Court's Orders
directing him to re-file his complaint on the Court's
form for § 1983 actions. (Doc. 8 at 2).
To
date, Hill has not re-filed his complaint on the Court's
form as directed, nor has he shown cause for his repeated
failure to comply with the Court's directives.
Additionally, the Court's Orders that have been mailed to
Hill have not been returned by the postal service marked
“undeliverable, ” nor has the Court received any
other indication that Hill has not received the Orders in
this action. Hill has not notified the Court of any change in
his address. Indeed, Hill clearly received the Court's
Order dated October 5, 2018, as he complied with the portion
of that Order requiring him to sign and return his motion to
proceed without prepayment of fees but ignored the portion of
the Order requiring him to re-file his complaint on the
Court's form. Simply put, Hill has failed to comply with
the Court's Orders directing him to re-file his action on
the Court's form for § 1983 prisoner actions, he has
failed to show cause for said failure, and he has not offered
any explanation for his noncompliance.
An
action may be dismissed if the plaintiff fails to prosecute
it or if he fails to comply with any court order. See
Dickinson v. Granade, 2016 U.S. Dist. LEXIS 85448, at
*26, 2016 WL 3647181, at *8 (S.D. Ala. June 1, 2016),
report and recommendation adopted, 2016 U.S. Dist.
LEXIS 85145, 2016 WL 3637093 (S.D. Ala. June 30, 2016)
(citing Fed.R.Civ.P. 41(b)); see also Link v. Wabash R.R.
Co., 370 U.S. 626, 630-631 (1962) (holding district
courts have the power to dismiss a cause of action sua
sponte for failure to prosecute); World Thrust
Films, Inc. v. Int'l Family Entm't, Inc., 41
F.3d 1454, 1456 (11th Cir. 1995) (stating that a district
court may dismiss actions for failure to comply with rules
when “(1) a party engages in a clear pattern of delay
or willful contempt (contumacious conduct); and (2) the
district court specifically finds that lesser sanctions would
not suffice”).
Here,
Hill has, at a minimum, engaged in a clear pattern of delay
by failing to comply with two Court Orders to re-file his
complaint on this Court's form and a third Order
requiring him to show cause for his previous failures to
comply. Accordingly, the undersigned RECOMMENDS that the
Court dismiss his action without prejudice for failure to
obey the Court's Orders and to prosecute this action, as
no lesser sanctions would suffice.
NOTICE
OF RIGHT TO FILE OBJECTIONS
A copy
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under
Eleventh Circuit Rule 3-1, “[a] party failing to object
to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with
the provisions of 28 U.S.C. § 636(b)(1) waives the right
to challenge on appeal the district court's order based
on unobjected-to factual and legal conclusions if the party
was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence
of a proper objection, however, the court may review on
appeal for plain error if necessary in the interests of
justice.” 11th Cir. R. 3-1.
In
order to be specific, an objection must identify the specific
finding or specify the place in the Magistrate Judge's
report and recommendation where the disputed determination is
found. An objection that merely incorporates by reference or
...