Borden v. Cheaha Regional Mental Health
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/8/2016. (AVC)
2016 Mar-08 AM 10:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LASHUNDA R. BORDEN,
CHEAHA REGIONAL MENTAL
) Case No.: 1:16-CV-0163-VEH
Introduction and Procedural History
On January 29, 2016, Plaintiff LaShunda R. Borden (“Ms. Borden”), who is
proceeding pro se, initiated this miscellaneous Title VII application against her
former employer, Defendant Cheaha Regional Mental Heath (“Cheaha”), alleging
race and religious discrimination. (Doc. 1 at 5).1 After reviewing Ms. Borden’s filing,
the court concluded that it could appropriately exercise subject matter jurisdiction
over her case. (Doc. 2 at 2). However, the court perceived other problems with Ms.
Borden’s pleading and, on February 2, 2016, ordered her (i) to replead her claims in
a manner consistent with the Federal Rules of Civil Procedure, and (ii) to attach a
All page references to Doc. 1 correspond with the court’s CM/ECF numbering system.
copy of her charge of discrimination filed with the EEOC.2 (Doc. 2 at 2)
The court gave Ms. Borden 30 days–or until March 3, 2016–in which to
comply with its order. Id. The court further expressly warned Ms. Borden that her
failure to file an amended complaint as required by the court would result in her
lawsuit being dismissed without prejudice. Id.
The record shows that the clerk’s office mailed the repleader order to Ms.
Borden a few days after it was entered (see CM/ECF margin entry dated Feb. 2, 2016,
indicating “Order mailed to Plaintiff via USPS on this the 2nd day of February,
2016”)), and yet the repleader deadline has passed without any filing from Ms.
Borden. Under such circumstances and as explained more fully below, the court
concludes that Ms. Borden’s case against Cheaha is due to be dismissed without
prejudice sua sponte.
As the foregoing procedural history reveals, Ms. Borden has neither complied
with the requirement that she replead her claims nor provided any explanation to the
court for this non-compliance. Under the Federal Rules of Civil Procedure, “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant
Additionally, the court permitted Ms. Borden to proceed in forma pauperis, but denied her
separate request for the appointment of an attorney to represent her. (Doc. 2 at 1-2).
may move to dismiss the action or any claim against it.” FED. R. CIV. P. 41(b).
Further, case law reinforces that, as a result of Ms. Borden’s failure to comply
with the repleader order or otherwise indicate an intent that she still wishes to pursue
claims against Cheaha (e.g., such as by seeking an extension of time in which to
restate her claims and attach her EEOC charge), the court possesses the inherent
power to dismiss her suit sua sponte. See Link v. Wabash Railroad Co., 370 U.S. 626,
630-31, 82 S. Ct. 1386, 1389, 8 L. Ed. 2d 734 (1962) (“The authority of a court to
dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent
power,’ governed not by rule or statute but by the control necessarily vested in courts
to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.”); see also Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (“The
court’s power to dismiss is an inherent aspect of its authority to enforce its orders and
insure [sic] prompt disposition of lawsuits.” (citing Link, 370 U.S. at 630-31, 82 S.
Ct. at 1388-89)); cf. Gratton v. Great American Communications, 178 F.3d 1373,
1374 (11th Cir. 1999) (recognizing that court has broad authority under Rule 37 to
control discovery and enforce its orders); cf. also FED. R. CIV. P. 1 (“[These rules]
should be construed and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding.”) (emphasis added).
“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 her to replead and to attach her EEOC charge,
Ms. Borden was expressly put on notice that the court would consider dismissing her
lawsuit for lack of prosecution if she failed to timely and adequately comply (Doc.
2 at 2) and, nonetheless, she ignored that warning and filed nothing. “[A] plaintiff
who ignore[s] notices and orders of the court [is not] excused merely because of her
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));3 see also Moon, 863 F.2d at 837
(“[O]nce a pro se IFP litigant is in court, [s]he is subject to the relevant law and rules
of court, including the Federal Rules of Civil Procedure.”).
Guided by the foregoing legal framework, the court concludes that dismissing
Ms. Borden’s action against Cheaha “without prejudice” (rather than “with
prejudice”) is the most appropriate measure to take, especially as Ms. Borden is
representing herself. Cf. Phipps v. Blakeny, 8 F.3d 788, 790-91 (11th Cir. 1993)
(“When the record clearly demonstrates that a plaintiff deliberately and defiantly
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.
refused to comply with several court orders on discovery and tells the court that [s]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.”). Simply put, a “without prejudice”
dismissal means that the merits of Ms. Borden’s claims against Cheaha, if any, are not
barred from further litigation by such an order. Additionally, a “without prejudice”
dismissal is consistent the court’s prior warning to Ms. Borden about the negative
consequences for her in the event that she did not replead her claims as
unambiguously ordered. (Doc. 2 at 2).
Therefore, Ms. Borden’s claims against Cheaha are due to be dismissed without
prejudice in light of her failure to prosecute as provided for under the Federal Rules
of Civil Procedure and the express requirements of this court’s February 2, 2016,
order for repleader. The court will enter a separate dismissal order in conformance
with this memorandum opinion.
DONE and ORDERED this the 8th day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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