United States District Court, S.D. Alabama, Southern Division
EDWIN E. WHITE, #0256955, Plaintiff,
SHERIFF SAM COCHRAN, Defendant.
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
who is proceeding pro se and in forma
pauperis, filed a Complaint under 42 U.S.C. § 1983
when he was a Mobile County Metro Jail (Metro Jail) inmate.
This action was referred to the undersigned for appropriate
action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D.
Ala. GenLR 72(a)(2)(R). It is recommended that this action be
dismissed without prejudice for failure to prosecute and to
obey the Court's order.
action is before the Court on Chief District Judge
DuBose's September 12, 2018 Order that Plaintiff re-file
a motion to amend the Complaint by October 2, 2018 to correct
the deficiencies noted in the Report and Recommendation dated
August 20, 2018 (Doc. 49). (Doc. 52). The Order was sent to
Plaintiff at the 2451 Gulf Terra Drive North, Mobile,
Alabama, address, which he had recently provided the Court.
(Doc. 47). Plaintiff's copy has not been returned to the
Chief Judge DuBose entered the September 12, 2018 Order, six
months elapsed before Plaintiff contacted the Court on March
20, 2019, requesting all forms including § 1983 forms,
the case number and status of his action against Sam Cochran,
and a pro se package. (Doc. 53). His postcard
indicated he was again incarcerated at the Metro Jail.
(Id.). A docket sheet and forms were sent to him.
March 21, 2019, the Court entered an Order denying
Plaintiff's Motion to Proceed Without Prepayment of Fees,
filed on September 5, 2018 (Doc. 51), as moot. (Doc. 53). In
the Order Plaintiff was reminded that he had not taken any
action since filing that Motion on September 5, 2018 (Doc.
51) or since the September 12, 2018 Order adopting Report and
Recommendation and requiring that he file by October 2, 2018
a motion to amend his Complaint that cured the noted
deficiencies. (Doc. 54). Plaintiff's copy of the March
21, 2019 Order entered has not been returned to the Court.
least ten months have passed since Plaintiff was due to have
filed an amended complaint by October 2, 2018. (Doc. 52).
There has been no attempt by Plaintiff to file the required
motion to amend the complaint or the amended complaint. Ample
time has elapsed for him to have complied with the
Court's Order. Furthermore, on this date, the Court
examined the websites for the Alabama Department of
Corrections and the Mobile County Sheriff's Department
and did not find Plaintiff in either's custody. (last
visited Aug. 26, 2019).
though Plaintiff is a pro se litigant, he is still
“subject to the relevant law and rules of court
including the Federal Rules of Civil Procedure.”
Moon Newsome, 863 F.2d 835, 837 (11th Cir.),
cert. denied, 493 U.S. 863 (1989). If a plaintiff
fails to prosecute his claim or comply with a court order,
the court may dismiss the claim. Equity Lifestyle Prop.,
Inc. v. Fla. Mowing & Landscape Serv., Inc., 556
F.3d 1232, 140 (11th Cir. 2009). A district court's
authority to dismiss an action for failure to prosecute is
inherent. Link v. Wabash R.R., 370 U.S. 626, 630, 82
S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). “The power to
invoke this sanction is necessary in order to prevent undue
delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.”
Id. at 629-30, 82 S.Ct. at 1388. This authority
gives the courts power “to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.” Id. at 630-31, 82 S.Ct. at 1389.
authority to control proceedings before the court
“includes the authority to impose reasonable and
appropriate sanctions.” Martin v. Automobili
Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th
Cir. 2002) (quotation marks omitted). “The sanctions
imposed can range from a simple reprimand to an order
dismissing the action with or without prejudice.”
Mingo v. Sugar Cane Growers Co-op of Fla., 864 F.2d
101, 102 (11th Cir. 1989); see Goforth v. Owens, 766
F.2d 1533, 1535 (11th Cir. 1985) (the power to dismiss an
action for failure to comply with an order is an inherent
power of the courts); Flaska v. Little River Marine
Constr. Co., 389 F.2d 885, 887 (5th Cir.) (“It is
well established that the district court has the authority to
dismiss…for failure to prosecute with reasonable
diligence or to comply with its orders or rules of
procedure.”), cert. denied, 392 U.S. 928
(1968); see also Gratton v. Great Am. Commc'n,
178 F.3d 1373, 1374 (11th Cir. 1999) (Rule 41(b),
Fed.R.Civ.P., expressly “authorizes a district court to
dismiss a complaint for … failure to comply with a
sanction of “dismissal is warranted only upon a
‘clear record of delay or willful contempt and a
finding that lesser sanctions would not suffice.'”
Mingo v. Sugar Cane Growers Co-op of Fla., 864 F.2d
101, 102 (11th Cir. 1989) (quoting Goforth, 766 F.2d
at 1535). “Contumacious conduct warranting dismissal
for failure to prosecute includes such activities as
protracted foot-dragging, defiance of court orders, ignoring
warnings, and wasteful expenditure of the court's
time.” Green v. Dep't of Housing & Urban
Dev., CA No. 10-0473-WS-M, 2011 WL 98542, at *2 (S.D.
Ala. 2011) (unpublished) (quotation marks and citation
omitted). Conduct of this nature is present in this action.
Here, Plaintiff's conduct has shown a disregard for the
Court's Orders and has unnecessarily caused the
expenditure of the Court's time and resources.
however, requires that before recommending the sanction of
dismissal, the Court consider whether a lesser sanction will
suffice. Mingo, 864 F.2d at 102. In this instance,
there are no other effective sanctions available because
Plaintiff, who is pro se, will not abide by the
Court's Orders and is proceeding in forma
pauperis. Thus, a monetary fine would have no effect on
Plaintiff. Consequently, the dismissal of his action without
prejudice is the most appropriate sanction. See
Moon, 863 F.2d at 837-39 (affirming the dismissal with
prejudice of an in forma pauperis, pro se
prisoner's action for failure to pay the sanction of
costs associated with the deposition that he refused to give
despite being previously warned he must be deposed or he
would bear the deposition's costs or suffer the dismissal
of his action).
has not filed a motion to amend the complaint by October 2,
2018 as ordered (Doc. 52), and there has been minimal contact
between the Court and Plaintiff since September 5, 2018. The
undersigned therefore finds that Plaintiff has abandoned the
prosecution of this action. It is recommended that this
action be dismissed without prejudice for failure to
prosecute and to follow the Court's Orders.
OF RIGHT TO FILE OBJECTIONS
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. Gen.LR 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 recommendation to which ...