United States District Court, S.D. Alabama, Southern Division
ORDER
TERRY
F. MOORER UNITED STATES DISTRICT JUDGE.
On June
11, 2019, the Magistrate Judge entered a report and
recommendation which recommends this action be dismissed
without prejudice for failure to prosecute and to comply with
the court's orders. See Doc. 33. Objections were
due on June 25, 2019. Originally, it appeared that no
objections were timely filed. As such on July 3, 2019, the
Court adopted the report and recommendation noting that no
objections were filed. See Doc. 34. On July 9, 2019,
objections received from Plaintiff Presley were docketed.
See Doc. 36. The objections show a post mark of July
1, 2019, but the certificate of service states they were
signed June 24, 2019. Id. at 3-4. As such, the Court
considers the objections to be timely filed.
I.
Law Generally
Fed. R.
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/V Monada, 432 F.3d 1333, 1337 (11th
Cir. 2005). “[D]ismissal upon disregard of an order,
especially where the litigant has been forewarned, generally
is not an abuse of discretion.” Vil v. Perimeter
Mortg. Funding Corp., 715 Fed.Appx. 912, 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, 863 F.2d at 837
(As a general rule, where a litigant has been forewarned,
dismissal for failure to obey a court order is not an abuse
of discretion.). Therefore, the Court finds it appropriate to
exercise its “inherent power” to “dismiss
[Plaintiff's 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).
II.
Discussion
The
Special Report was converted to a motion for summary judgment
on April 12, 2019. See Doc. 32. Plaintiff was
instructed to notify the Court on or before May 6, 2019 if he
wished to continue this lawsuit and that failure to respond
would be treated as an abandonment of the claims.
Id. at 4. Additionally, any response in opposition
to the motion for summary judgment would be due by June 3,
2019. Id. at 2. Plaintiff did not meet or respond to
either deadline.
Rather,
in response to the report and recommendation, Plaintiff
objects and indicates he wants to continue to prosecute this
action. See Doc. 36. He offers that the reason he
failed to respond is he was confined to the segregation unit
of the prison and denied access to legal assistance from the
fellow inmate that helped him file the suit. Id. at
1-2. He indicates that he sent the Court order to that
inmate, but “it is apparent that the inmate [never] got
the order” which is the reason he failed to respond.
Id. at 2. Plaintiff was then released from
segregation on June 14, 2019 and found another inmate willing
to assist him. Id.
The
problem Plaintiff has is that he failed to communicate with
the Court at multiple stages. He indicates he received the
Court order, but simply failed to respond because of the lack
of assistance from his fellow inmates. At no time did he
request additional time or explain the situation until after
the report and recommendation was entered. The order was
entered on April 12, 2019 which gave him two specific
deadlines - May 6, 2019 and June 3, 2019. Both deadlines
passed without any word from the Plaintiff that he was having
difficulties.
Plaintiff
was warned in the April 12, 2019 order that failure to
respond by the deadline would be considered by the Court as
an abandonment of the prosecution of the case and that the
case would be dismissed. See Doc. 32 at 4.
Ultimately, Plaintiff was responsible for his own case (with
or without the assistance of his fellow inmates). He did not
timely respond and was aware of the consequences of that
failure. To hold otherwise would render Court deadlines
meaningless in such situations as prisoners could repeatedly
blame their fellow inmates for their failure to adhere to
deadlines.
III.
Conclusion
Therefore,
after due and proper consideration of all portions of this
file deemed relevant to the issue raised, and a de
novo determination of those portions of the Report and
Recommendation to which objection is made, the Report and
Recommendation of the Magistrate Judge is again
ADOPTED and this action is hereby
DISMISSED without prejudice for failure to
prosecute and obey the Court's order.
DONE
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