Swain v. American Metal Technology
MEMORANDUM OPINION AND ORDER DISMISSING CASE WITHOUT PREJUDICE for failure to comply with the Court's 5 Order and for failure to prosecute. Signed by Judge Virginia Emerson Hopkins on 3/29/2016. (JLC)
2016 Mar-29 AM 11:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WILLIS JAMEL SWAIN,
CIVIL ACTION NO.:
MEMORANDUM OPINION AND ORDER
Plaintiff Willis Jamel Swain (“Swain”) initiated this pro se action under Title
VII of the Civil Rights Act of 1964 (“the Act”) on December 21, 2015. (See Doc. 1).
In his complaint, he moved, pursuant to section 706(f) of the Act, for leave to
proceed in forma pauperis. The court denied the motion and ordered Swain to pay the
filing fee in his case by January 23, 2016. (Doc. 2). On January 5, 2016, the court
ordered Swain to file an amended complaint in conformity with Rules 8 and 10 of the
Federal Rules of Civil Procedure within 45 days of the entry of that order. (Doc. 5).
Swain was explicitly warned in the January 5 order that failure to comply with it could
“result in this action being dismissed without prejudice, sua sponte.” (Id. at 2).
Over eighty days have elapsed since then, and Swain has neither amended his
complaint nor served his original complaint on Defendant American Metal
Technology. Accordingly, this case is due to be DISMISSED WITHOUT
PREJUDICE for failure to comply with the court’s January 5 order and for Swain’s
failure to prosecute his claim. See FED. R. CIV. P. 41(b) (“If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.”); Link v. Wabash R. Co., 370 U.S. 626,
630 (1962) (district court has the inherent power to dismiss an action sua sponte for
failure to prosecute).
“While dismissal is an extraordinary remedy, dismissal upon disregard of an
order, especially where the litigant has been forewarned, generally is not an abuse of
discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (emphasis added)
(citing State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)).
Here, by virtue of the court’s order requiring him to replead, Swain was expressly put
on notice that the court would consider dismissing his lawsuit for lack of prosecution
if he failed to timely and adequately comply, yet he ignored that warning and filed
nothing. “[A] plaintiff who ignore[s] notices and orders of the court [is not] excused
merely because of [his] pro se status.” Moon, 863 F.2d at 838 n.5 (citing Anthony v.
Marion County General Hospital, 617 F.2d 1164, 1169 (5th Cir. 1980));1 see also
Moon, 863 F.2d at 837 (“[O]nce a pro se IFP litigant is in court, he is subject to the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
relevant law and rules of court, including the Federal Rules of Civil Procedure.”).
Additionally, the court concludes that dismissing Swain’s complaint against
AMT “without prejudice” (as opposed to “with prejudice”) is the most appropriate
course of action, especially in light of the fact that Swain represents himself. Cf.
Phipps v. Blakeny, 8 F.3d 788, 790-91 (11th Cir. 1993) (“When the record clearly
demonstrates that a plaintiff deliberately and defiantly refused to comply with several
court orders on discovery and tells the court that he will not comply in the future, a
district judge has the authority to deny that plaintiff further access to the court to
pursue the case.”). In short, a dismissal “without prejudice” means that the merits of
Swain’s claims against AMT, if any, are not barred from further litigation by this
order. Additionally, a dismissal “without prejudice” is consistent with the court’s
prior warning about the negative consequences of Swain’s failure to replead his
complaint as ordered.
The foregoing authorities reveal the propriety of the dismissal of this action.
Therefore, it will be DISMISSED WITHOUT PREJUDICE.
DONE and ORDERED this the 29th day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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