United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
the court is the pro se complaint of Plaintiff
Montrail Russell. Doc. 1. Also pending is a Motion to Proceed
in forma pauperis (Doc. 4), and a Motion to Appoint
Counsel. Doc. 1. Pursuant to 28 U.S.C. § 636(b)(1) this
case was referred to the undersigned United States Magistrate
Judge for review and submission of a report with recommended
findings of fact and conclusions of law. Doc. 3. For the
reasons stated below, the Magistrate Judge RECOMMENDS that
the Motion to Proceed in forma pauperis (Doc. 4) be
GRANTED, and that the Motion to Appoint Counsel (Doc. 1) be
DENIED as moot. After a careful review of the complaint and
the applicable law, and giving due consideration to
Russell's pro se status, the undersigned further
RECOMMENDS that this case be DISMISSED.
FACTS AND PROCEDURAL HISTORY
appearing pro se, filed a complaint against the
Alabama Department of Mental Health and Taylor Hardin. Doc.
1. Finding the complaint to be a shotgun pleading, this court
ordered Russell to file an amended complaint on or before May
9, 2019, which complies with Rules 8 and 10 of the Federal
Rules of Civil Procedure and which contains clear allegations
of facts showing that Russell is entitled to relief under
federal law. Doc. 8. Russell was cautioned that failure to
submit an amended complaint may result in recommendation of
dismissal of this case. Doc. 8 at 3. Russell has not filed an
amended complaint as of the date of this Recommendation.
STANDARDS OF REVIEW
41(b) of the Federal Rules of Civil Procedure provides for
dismissal if a plaintiff fails to comply with a court order.
Pursuant to that rule, a court may dismiss an action sua
sponte. Brown v. Tallahassee Police Dept., 205
Fed.Appx. 802, 802 (11th Cir. 2006).
he was ordered to do so, Russell did not file an amended
complaint within the time allotted to him. The court
cautioned Russell that his failure to submit an amended
complaint could result in a recommendation that the case be
dismissed. Doc. 8 at 3. As noted above, Rule 41 of the
Federal Rules of Civil Procedure authorizes the court to
dismiss an action on its own motion if a plaintiff fails to
comply with a court order. See Brown, 205 Fed.Appx.
at 802. The district court's “power to dismiss is
an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits.” Jones v.
Graham, 709 F.2d 1457, 1458 (11th Cir.1983) (citation
omitted). Dismissal with prejudice pursuant to Rule 41 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). In this case, while
dismissal with prejudice is a serious sanction, given
Russell's failure to comply with the court's Order to
file an amended complaint which complies with Rules 8 and 10
of the Federal Rules of Civil Procedure, the court concludes
that Russell's failure to comply was willful,
particularly since he was forewarned that his claims could be
dismissed if he did not comply with the Order. The court also
finds that lesser sanctions would not suffice because this
litigation cannot advance without a pleading that states a
plausible claim for relief. See Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (stating that dismissal under
Rule 41(b) “upon disregard of an order, especially
where the litigant has been forewarned, generally is not an
abuse of discretion”).
court is of course mindful of Russell's pro se
status. While pro se pleadings are held to a lesser
standard than those prepared by attorneys and “are thus
construed liberally, ” see Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008), pro se
litigants still must comply with the Federal Rules of Civil
Procedure. Giles v. Wal-Mart Distrib. Ctr., 359
Fed.Appx. 91, 93 (11th Cir. 2009) (finding no abuse of
discretion in dismissal where “despite guidance from
the district court on how to cure the deficiencies in his
complaint and a clear warning that noncompliance would be
cause for dismissal, Giles did not comply with the district
court's order to file an amended complaint in conformity
with the requirements of Rules 8 and 10”).
light of the foregoing, it is the RECOMMENDATION of the
Magistrate Judge that Russell's Motion to Proceed in
forma pauperis (Doc. 4) be GRANTED, but that this action
be DISMISSED without service of process and that the Motion
to Appoint Counsel (Doc. 1) be DENIED as moot.
further ORDERED that Russell is DIRECTED to file any
objections to this Recommendation on or before June
12, 2019. Any objections filed must identify the
specific 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. This Recommendation is not a final order
of the court, and, therefore, it is not appealable.
to file written objections to the Magistrate Judge's
factual findings and recommendations in accordance with the
provisions of 28 U.S.C. § 636(b)(1) shall bar a party
from a de novo determination by the District Court
of legal and factual issues covered in the report and
recommendation, and also waives the right of the party to
challenge on appeal the District Court's order based on
findings and conclusions that the parties have not objected
to, in the absence of plain error or manifest injustice.
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