Therian Wimbush v. State of Georgia, et al

Filing

Opinion issued by court as to Appellant Therian Cornelia Wimbush. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15782

Date Filed: 12/22/2016

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15782
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-02883-LMM

THERIAN CORNELIA WIMBUSH,

Plaintiff-Appellant,
versus
STATE OF GEORGIA,
NATHAN DEAL,
individually and in his official capacity
as the governor of the State of Georgia,
GWINNETT COUNTY GOVERNMENT, et al.,

Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 22, 2016)

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Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Therian Wimbush, a pre-trial detainee proceeding pro se, appeals the sua
sponte dismissal of her 42 U.S.C. § 1983 action against the State of Georgia, the
Governor of Georgia, numerous state and county agencies, officials, employees,
and various judges and prosecutors, for willful refusal to obey the court’s orders
and alternatively, for failure to state a claim. Wimbush raises three issues on
appeal. First, she contends the court failed to comply with the statutory
requirements of 28 U.S.C. § 1915A, requiring courts to seek out and identify any
cognizable claim within a pleading. Second, she asserts the district court erred in
dismissing her claim without prejudice for willful refusal to obey the court’s
orders. Finally, she argues the district court erred in dismissing her complaint for
failure to state a claim for relief. Upon review,1 because we find the district court
did not abuse its discretion in dismissing Wimbush’s claims for failure to obey its
orders, we affirm.
I. DISCUSSION
To properly state a claim, a plaintiff must file a complaint containing “a
short and plain statement of the claim showing that the pleader is entitled to relief.”

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We review a district court’s exercise of its authority to dismiss for failure to comply
with a court order for an abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985).
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Fed. R. Civ. P. 8(a)(2). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 556 U.S. at 555).
As to the first issue, § 1915A states that on review of a prisoner’s civil
complaint, the district court “shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint . . . is frivolous,
malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C.
§ 1915A(b)(1). In order to identify cognizable claims in Wimbush’s lengthy and
convoluted pleading, the court ordered Wimbush to refile her complaint on the
form provided by the clerk of the court and specified the manner in which
Wimbush should plead her claims. Wimbush refused to do so. She cannot shift her
responsibility to submit an adequate pleading to the court while refusing to follow
its orders. See Campbell v. Air Jam., Ltd., 760 F.3d 1165, 1168–69 (11th Cir.
2014) (“[Although we] hold the allegations of a pro se complaint to less stringent
standards than formal pleadings drafted by lawyers . . . this leniency does not give
a court license to serve as de facto counsel for a party, or to rewrite an otherwise

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deficient pleading in order to sustain an action.” (citation and quotation omitted)).
Her suggestion that the district court failed to comply with § 1915A is inapposite.
Second, because Wimbush repeatedly refused to refile her complaint as
directed, the district court was permitted to dismiss the action for failure to obey its
orders. See Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (“[A] court has
the inherent ability to dismiss a claim in light of its authority to enforce its orders
and provide for the efficient disposition of litigation.”); N.D. Ga. Civ. R.
41.3(A)(2) (“The court may, with or without notice to the parties, dismiss a civil
case for want of prosecution if . . . [a] plaintiff or plaintiff’s attorney shall, after
notice . . . refuse to obey a lawful order of the court in the case.”). Wimbush was
ordered to refile in the manner provided by the court three times and was
specifically told failure to comply could result in dismissal. See Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“[D]ismissal upon disregard of an
order, especially where the litigant has been forewarned, generally is not an abuse
of discretion.”). Yet Wimbush repeatedly refused to submit an amended complaint
and instead filed multiple motions contesting the court’s orders. Her stubborn
disobedience was clearly willful and any sanction short of dismissal would have
been futile. Zocaras, 465 F.3d at 483 (“Dismissal with prejudice is not proper
unless the district court finds a clear record of delay or willful conduct and that
lesser sanctions are inadequate to correct such conduct.”) (quotation omitted); see
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also id. at 484 (“[W]e have made clear that such consideration [of alternative
sanctions] need not be explicit.”) (citation omitted). The district court did not err
in exercising its authority to dismiss Wimbush’s complaint. As a result, we need
not address the third issue regarding the district court’s alternative holding that the
complaint failed to state a claim.
The order dismissing all claims specified only that its dismissal of the
malicious prosecution claim was without prejudice. Thus all Wimbush’s other
claims are dismissed with prejudice. See Fed. R. Civ. P. 41(b) (“Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19—operates as an adjudication on the
merits.”); N.D. Ga. Civ. R. 41.3(B) (“[A] dismissal for want of prosecution
operates as an adjudication on the merits of the action unless the court specifies
otherwise in its order of dismissal.”).
II. CONCLUSION
The district court did not abuse its discretion in dismissing Wimbush’s
claims after she repeatedly and willfully failed to obey its orders. Accordingly, we
affirm.
AFFIRMED.

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