United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA
F. BIVINS UNITED STATES MAGISTRATE JUDGE
This
action, which has been referred to the undersigned for
appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B)
and S.D. Ala. GenLR 73, is before the Court on review. For
the reasons set forth below, it is
RECOMMENDED that the claims of Plaintiff,
Anthony Redmond, be DISMISSED without
prejudice for failure to prosecute and obey the Court's
orders.
I.
BACKGROUND
On June
26, 2019, attorney Robert J. Camp filed a complaint on behalf
of Plaintiff Anthony Redmond, alleging race discrimination
and retaliation by Defendants Sacred Heart, d/b/a Bay Medical
Center and Arden Americas, LLC, d/b/a Ardent Health Services,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, and in violation of 42 U.S.C. §
1981. (Doc. 1). According to the complaint, Redmond was
employed by Defendants and while he was eating in the
hospital cafeteria on February 14, 2018, the kitchen manager
accused Redmond of impersonating an employee in order to
steal food and had him removed from the hospital by security.
(Id. at 3). Approximately two weeks later, Redmond
complained about the incident to the CEO of Bay Medical
Center, and in response, the CEO made racially motivated
statements to Redmond and caused him to be suspended without
pay. Redmond was ultimately forced to resign after he filed a
complaint with the EEOC. (Id. at 3-5).
On
August 12, 2019, attorney Robert J. Camp filed a motion to
withdraw from representing Redmond. Camp asserted that he had
written Redmond regarding the filing of his complaint in June
2019 and had repeatedly attempted to reach Redmond by email,
telephone, and United States mail but had received no
response from him. (Doc. 6 at 1-2). Camp further averred
that, in a letter sent to Redmond on July 15, 2019, he
advised Redmond that if he did not contact him within the
following two weeks, he would seek to withdraw from further
representation. (Id.). Per Camp, Redmond did not
respond to the letters, emails, or telephone calls; thus, he
filed the motion requesting permission to withdraw.
(Id.).
On
August 13, 2019, the Court issued an order directing Camp to
file, by August 20, 2019, a notice setting forth
Redmond's last known address, telephone number, and email
address (if applicable). Camp was also directed to include a
certificate confirming that a copy of his motion to withdraw
and the instant order were mailed to Redmond at his last
known address. (Doc. 7). On August 20, Camp filed a notice
confirming that he had complied with the directives contained
in the Court's order dated August 13, 2019. (Doc. 10).
Camp also filed a stipulation for the dismissal of Ardent
Americas, LLC. (Doc. 11).
The
Court scheduled a hearing, via telephone, for August 23,
2019, and provided notice to the attorneys and Redmond via
email. Although Redmond was provided notice, he did not
participate in the status conference on August 23, 2019.
Based on the representations of counsel at the August 23rd
hearing, the Court issued an order on that same date granting
Camp's motion to withdraw based on Redmond's failure
to communicate with him. (Id.). The Court also
granted Redmond leave, until September 6, 2019, to retain new
counsel and have his new counsel file a written notice of
appearance with the Court, or, alternatively, for Redmond to
advise the Court, in the form of a written pleading pursuant
to S.D. Ala. GenLR 5(a)(4), of his intent to proceed pro
se[1] no later than September 6, 2019.
(Id. at 2). Redmond was cautioned that failure to
comply with the order would result in a recommendation that
his claims be dismissed for failure to
prosecute.[2] (Id.). To date, Redmond has not
responded to the Court's order dated August 23, 2019, and
his copy of the order has not been returned to the Court as
undeliverable.
II.
DISCUSSION
“District
courts possess inherent power to sanction errant litigants
before them[, ]” including the power to dismiss an
action for failure to prosecute. Bolar v. Southern
Intermodal Express, 2018 U.S. Dist. LEXIS 158788, *5,
2018 WL 5116539, *2 (S.D. Ala. Sept. 17, 2018), report
and recommendation adopted sub nom., 2018 U.S. Dist.
LEXIS 179588, *2, 2018 WL 5116093 (S.D. Ala. Oct. 19, 2018)
(quoting Hudson v. Cardwell Corp., 2006 WL 2135791,
*1, 2006 U.S. Dist. LEXIS 55306 at *3 (S.D. Ala. July 27,
2006)). While “[p]ro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed[, ]”
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998), this does not extend to a pro se
litigant's failure to comply with federal procedural
rules, local court rules, or orders of the court.
See, e.g., Brown v. Tallahassee Police
Dep't, 205 F.Appx. 802, 802-03 (11th Cir. Nov. 15,
2006) (affirming sua sponte dismissal of pro
se action for failure to prosecute or failure to obey a
court order.). Federal Rule of Civil Procedure 41(b)
expressly authorizes the involuntary dismissal of a claim due
to a plaintiff's failure to abide by court orders or the
Federal Rules of Civil Procedure. See,
e.g., State Exchange Bank v. Hartline, 693
F.2d 1350, 1352 (11th Cir. 1982) (“The Federal Rules
expressly authorize a district court to dismiss a claim,
including a counterclaim, or entire action for failure to
prosecute or obey a court order or federal rule.”).
Moreover, the power of a court to dismiss a claim “is
inherent in a trial court's authority to enforce its
orders and ensure prompt disposition of legal actions.”
Id.
In the
instant action, Redmond was informed that failure to comply
with the Court's orders would result in a recommendation
of dismissal. (Doc. 15). Despite the fact that Redmond was
given the opportunity to respond to Camp's motion to
withdraw, to the Court's notice of the status conference,
and to the Court's order directing Redmond to retain new
counsel or advise the Court of his intent to proceed pro
se, he has failed to do so. Redmond's complete
failure to respond to the Court, as well as his failure to
respond to multiple letters, emails, and telephone calls from
his former counsel, strongly suggests that he has lost
interest in this litigation and does not intend to prosecute
this action. Under the circumstances, the Court finds that no
alternatives short of dismissal will suffice.
III.
Conclusion
Based
on the foregoing, it is RECOMMENDED that
this action be DISMISSED without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute and failure to comply with
the Court's directives.
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 recommendation to which ...