Ely v. Mobile Housing Board et al

Filing 24

ORDER DISMISSING CASE without prejudice for failure to prosecute and failure to obey the Court's orders. Signed by Chief Judge William H. Steele on 6/10/2016. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEVIN ELY,
Plaintiff,
v.
MOBILE HOUSING BOARD, et al.,
Defendants.

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CIVIL ACTION 15-0565-WS-B

ORDER
This matter comes before the Court sua sponte.
On November 13, 2015, plaintiff Devin Ely, proceeding pro se, filed a facially deficient,
minimalist Complaint (doc. 1) against defendants, Mobile Housing Board, Barbara Mitchell and
Sharon Stokes, that fell well short of alleging plausible claims against any of them. Even more
problematic was the fact, pointed out by defendants via Motion to Dismiss (doc. 14), that Ely’s
mother, Donavette Ely, had unsuccessfully litigated strikingly similar claims against the Mobile
Housing Board three years earlier in an action styled Donavette Ely v. Mobile Housing Board,
Civil Action 13-0105-WS-B.
Despite these defects, and in deference to Ely’s pro se status, the Court twice entered
Orders (docs. 21 & 23) staying this action to allow Ely a reasonable opportunity to seek out
counsel and file an amended complaint. The net result of those Orders was that this case was
stayed continuously from March 16, 2016 through June 3, 2016. The latter Order, entered on
May 13, 2016, contained very specific instructions for Ely about the Court’s expectations and the
consequences of noncompliance. In particular, the May 13 Order concluded as follows:
“No further stays will be granted to allow Ely to continue searching for counsel.
Certainly, the cumulative stay period from March 16 through June 3 (some 79
days) is more than sufficient for a reasonably diligent plaintiff to exhaust any and
all reasonable efforts to hire a lawyer. Whether Ely has found a lawyer by that
time or not, plaintiff is ordered to file a third amended complaint by no later than
June 6, 2016. If plaintiff does not file an appropriate amended complaint on
or before that deadline, this action may be summarily dismissed for failure to
prosecute and failure to obey the Court’s orders.”

(Doc. 23, at 2 (emphasis in original).) Copies of the May 13 Order were transmitted to Ely both
at his physical address of record and at the email address he provided to the Clerk of Court.
The June 6 deadline has come and gone; however, Ely has not filed the requisite amended
complaint. In fact, he has not filed anything in this case since his last Motion for Continuance
(doc. 22) back on April 29, 2016. Ely has not attempted to amend his Complaint, as directed in
bold text in the May 13 Order. He has not requested enlargement of that deadline for any reason.
He has done nothing, even though he was on notice that unless he filed an amended complaint on
or before June 6, 2016, this action may be summarily dismissed. Ely’s silence suggests that he
has abandoned his claims against the named defendants. Even if he does not intend to abandon
this action, the facts remain that (i) his Complaint does not comport with minimum pleading
requirements under the Federal Rules of Civil Procedure; (ii) his Complaint appears to be barred
by the doctrine of res judicata, as an improper attempt to relitigate claims previously litigated by
someone with whom he is in privity (i.e., his mother); (iii) Ely has failed to avail himself of a full
and fair opportunity to amend the Complaint to correct those pleading deficiencies; and (iv) Ely
did not comply with the clear directive in the May 13 Order that he must amend his pleading.
In light of the foregoing circumstances, this action is dismissed without prejudice
pursuant to Rule 12(b)(6), Fed.R.Civ.P., because the Complaint fails to state a claim on which
relief can be granted. In the alternative, this action is dismissed without prejudice for failure to
prosecute and failure to obey the Court’s orders, based on Ely’s noncompliance with the May 13
Order and his failure to make any attempt to amend his pleading within the allotted timeframe,
all despite clear notice that failure to do so would result in the prompt dismissal of his lawsuit. A
separate judgment will enter.
DONE and ORDERED this 10th day of June, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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