Smith v. Lukima et al

Filing 50

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/9/14. (SAC )

FILED
2014 Sep-09 PM 01:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TIMOTHY SMITH,
Plaintiff
vs.
LUKIMA, Officer, et al.,
Defendants

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Case No. 4:10-cv-02790-KOB-SGC

MEMORANDUM OPINION
On August 20, 2014, the magistrate judge filed a report and recommendation
recommending that the court dismiss this action with prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure based on Plaintiff Timothy Smith’s failure to
prosecute. (Doc. 48). The magistrate judge gave the parties fourteen days to file
written objections. (Id.).
On or about August 25, 2014, Plaintiff filed a letter with the court. (Doc. 49).
In that letter, Plaintiff referenced the Order entered by the magistrate judge on July
31, 2014 setting a telephone conference for August 18, 2014. Plaintiff stated that he
received that Order approximately one week prior to the scheduled telephone
conference, and that he attempted to participate in the telephone conference but was
unable to do so because of technical difficulties. Also in his letter, Plaintiff provided
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his cell phone number. Plaintiff otherwise has not filed any objections to the
magistrate judge’s report and recommendation, and the time for filing any such
objections has passed.
To the extent that the court construes Plaintiff’s August 25th letter as stating
objections to the magistrate judge’s report and recommendation, those objections are
due to be overruled. First, although Plaintiff alleges an excuse for failing to
participate in the August 18th telephone conference, Plaintiff offers no explanation for
why he failed to appear at the conference set by the magistrate judge for July 30, 2014
despite the magistrate judge’s warning that his failure to appear could result in
dismissal of his claims.1 Plaintiff’s failure to appear at that conference formed part
of the basis for the magistrate judge’s recommendation that the court dismiss this
action for Plaintiff’s failure to prosecute.
Second, while Plaintiff’s August 25th letter provided a cell phone number where
he could be reached, Plaintiff did not explain why he failed to provide that number
to the court prior to the August 18th telephone conference, as the magistrate judge
instructed him to do on July 31, 2014. (See Doc. 47). That failure is another example
of Plaintiff’s refusal to comply with orders issued by the magistrate judge.

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The court also notes that Plaintiff indicated in a letter deemed filed July 28, 2014 that he
would be checking the mail every day for orders entered in this action. (Doc. 46).

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“The decision to dismiss for want of prosecution lies within the trial court’s
discretion . . . .” Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir. 1980).2 “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.” Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962).
The record supports the conclusion that Plaintiff has deliberately disregarded
the magistrate judge’s orders requiring him to appear or otherwise participate in
conferences set for the purpose of preparing this case, commenced nearly four years
ago, for trial. Because the trial of Plaintiff’s claims is all that remains to be done, a
sanction less severe than dismissal would not suffice. See Goforth v. Owens, 766
F.2d 1533, 1535 (11th Cir. 1985) (“The legal standard to be applied under Rule 41(b)
is whether there is a ‘clear record of delay or willful contempt and a finding that
lesser sanctions would not suffice.’”). At this stage of the litigation, another thin
excuse for failing to attend or otherwise participate in a pre-trial conference offered
after the fact cannot save Plaintiff’s claims.3
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In Bonner v. City of Pritchard, 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.
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By a letter deemed filed July 28, 2014, Plaintiff alleged that he failed to appear at a
conference set for July 10, 2014 because he did not receive the order setting that conference.
(Doc. 46). The court notes the order setting the July 10th conference was sent to the address
provided by Plaintiff to which the magistrate judge’s orders setting the July 30th and August 18th

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Having carefully reviewed and considered de novo all materials in the court
file, including the report and recommendation and the Plaintiff’s letter of August 25,
2014, the court ADOPTS the magistrate judge’s report and ACCEPTS her
recommendation to dismiss this action for Plaintiff’s failure to prosecute. Further, to
the extent that it construes Plaintiff’s August 25, 2014 letter as objections to the
report and recommendation, the court OVERRULES those objections. Therefore the
court finds that this action is due to be dismissed with prejudice.
The court will enter a separate Order in conformity with this opinion.
DONE and ORDERED this 9th day of September, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

conferences were sent, and which Plaintiff has confirmed on multiple occasions. (See Docs. 40,
41 & 46).

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