Jenkins v. Attalla, City of et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/6/2015. (JLC)
2015 Apr-06 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JUSTIN SHANE JENKINS,
CITY OF ATTALLA, et al.,
Case No.: 4:14-CV-2137-VEH
Introduction and Procedural History
On November 3, 2014, Plaintiff Justin Shane Jenkins (“Mr. Jenkins”), who is
proceeding pro se, initiated this civil rights lawsuit against four defendants. (Doc. 1).
Mr. Jenkins’s case is about his arrest which he contends improperly occurred without
probable cause on or about November 2, 2012, by City of Attalla Police Officers Eric
P. Hawkins (“Mr. Hawkins”) and Steven W. Alexander (“Mr. Alexander”). (See
generally Doc. 1).
On January 5, 2015, the court dismissed Defendant Etowah County (the
“County”) from Mr. Jenkins’s case. (Doc. 14). Subsequently, on January 9, 2015, the
court dismissed the City of Attalla (the “City”) and Mr. Hawkins due to Mr. Jenkins’s
failure to prosecute. (Doc. 15 at 5). As a result, the only defendant remaining in Mr.
Jenkins’s lawsuit is Mr. Alexander. (See id. (“Mr. Jenkins’s claims brought against
Mr. Alexander are unaffected by this order and remain pending.”)).
Although Mr. Jenkins named Mr. Alexander in his lawsuit, he has yet to perfect
service on him. See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120 days
after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order
that service be made within a specified time.”). Under Rule 4(m), the deadline to serve
Mr. Alexander expired on March 3, 2015.
On March 9, 2015, the court entered an order directing Mr. Jenkins to show
cause, no later than March 30, 2015, why his claims against Mr. Alexander should not
be dismissed due to his failure to effectuate service. (See Doc. 16 at 1-2 (“Mr. Jenkins
is directed to show cause in writing by Monday, March 30, 2015 why this action
against Mr. Alexander should not be dismissed for failure to prosecute.”) (emphasis
Within this most recent show cause order, the court further cautioned Mr.
Mr. Jenkins is expressly warned that his failure to timely respond in
writing will result in an order dismissing his case against Mr.
Alexander without prejudice. Further, with all other defendants
having been previously dismissed by the court and no other claims
remaining, if Mr. Jenkins does not timely respond to this show cause
order relating to Mr. Alexander, this means that his entire lawsuit
will be dismissed.
(Doc. 16 at 2 (emphasis in original)).
Mr. Jenkins did not file anything in response to the court’s show cause order.
Under such circumstances and as explained more fully below, the court concludes that
Mr. Jenkins’s case against Mr. Alexander is due to be dismissed without prejudice sua
sponte as is the remainder of his action.
As the foregoing procedural history reveals, Mr. Jenkins has neither complied
with Rule 4(m) nor provided any explanation 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 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 Mr. Jenkins’s failure to comply
with the show cause on service order or otherwise indicate an intent that he still
wishes to pursue claims against Mr. Alexander (e.g., such as by seeking an extension
of time in which to perfect service on him), the court possesses the inherent power to
dismiss his case against Mr. Alexander 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 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 its show cause order, Mr. Jenkins was put on notice that the court was
considering whether to dismiss his claims against Mr. Alexander for lack of
prosecution and, nonetheless, he ignored that warning and filed nothing.1 “[A]
Although related to different defendants, the court notes that Mr. Jenkins similarly filed
nothing in opposition to the County’s Motion To Dismiss, despite the court’s entry of a specific
scheduling order for briefing on that Motion because of Mr. Jenkins’s pro se status. (Doc. 14 at 1).
Mr. Jenkins also did not ever respond to this court’s show cause order (Doc. 13) entered on
December 9, 2015, pertaining to his deficient prosecution of the City and Mr. Hawkins. (Doc. 15
plaintiff who ignore[s] notices and orders of the court [is not] excused merely because
of h[is] 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));2 see also Moon, 863 F.2d at
837 (“[O]nce a pro se IFP litigant is in court, 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
Mr. Jenkins’s action against Mr. Alexander and the remainder of Ms. Jenkins’s case
“without prejudice” (rather than “with prejudice”) is the most appropriate measure to
take, especially as Mr. Jenkins is representing 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.”). Simply
put, a “without prejudice” dismissal means that the merits of Mr. Jenkins’s claims
against Mr. Alexander, if any, are not barred from further litigation by such an order.
Further, a “without prejudice” dismissal is consistent with the court’s prior dismissal
of the City and Mr. Hawkins for lack of prosecution. (Doc. 15 at 5).
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.
Therefore, Mr. Jenkins’s claims against Mr. Alexander are due to be dismissed
without prejudice due to his failure to prosecute as provided for under the Federal
Rules of Civil Procedure and the express requirements of this court’s March 9, 2014,
show cause order. Further, in the absence of any other claims pending and consistent
with the court’s unambiguous forewarning, the remainder of Mr. Jenkins’s lawsuit is
due to be dismissed without prejudice as well. The court will enter a separate order in
conformance with this memorandum opinion.
DONE and ORDERED this 6th day of April, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?