Wanner v. LIFE Tech Transition Facility (MAG+)

Filing 27

ORDER ADOPTING 25 REPORT AND RECOMMENDATION. This action is DISMISSED without prejudice for failure to prosecute & obey the Court's order. Any remaining motions are DENIED as MOOT. Signed by District Judge Terry F. Moorer on 10/5/18. (copy mailed to Plf on 10/5/18) (tot)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION BRIAN KEITH WANNER, : Plaintiff, : vs. : LIFE TECH TRANSITION FACILITY, : Defendant. CIVIL ACTION NO. 17-0526-TM-N : ORDER On August 9, 2018, the magistrate judge entered a report and recommendation which recommends this action be dismissed without prejudice for failure to prosecute and failure to comply with the court’s orders. See Doc. 25. No objections were filed to the recommendation. On May 24, 2018, the magistrate judge ordered Plaintiff to file a second amended complaint. See Doc. 21. On July 2, 2018, the magistrate judge extended the deadline. See Doc. 24. The magistrate judge further warned plaintiff that “failure to comply with this order within the prescribed time will result in a recommendation of dismissal of this action for failure to prosecute and to obey the Court’s order.” Id. Plaintiff failed to respond. As a result the magistrate judge entered this report and recommendation for dismissal. 28 U.S.C. § 1654 permits a person to “plead and conduct their own cases personally or by counsel.” Even so, pro se litigants are required to conform to the procedural rules. See McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984, 124 L. Ed. 2d 21 (1993); Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002); Vil v. Perimeter Mortgage Funding Corp., 715 F. App’x 912 (11th Cir. Oct. 31, 2017). Fed. R. Civ. P. 41(b) authorizes dismissal of a complaint for failure to prosecute or failure to comply with a court order or the federal rules. Gratton v. Great Am. Page 1 of 2 Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a dismissal may be done on motion of the defendant or sua sponte as an inherent power of the court. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “[D]ismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Vil, 715 F. App’x at 915 (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). There has been no response to the prior court orders or even to the report and recommendation. “[E]ven a non-lawyer should realize the peril to [his] case, when [he] . . . ignores numerous notices” and fails to comply with court orders. Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164, 1169 (5th Cir. 1980); see also Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (As a general rule, where a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of discretion.). Therefore, the Court finds it appropriate to exercise its “inherent power” to “dismiss [Plaintiff’s claims] sua sponte for lack of prosecution.” Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); see also Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (describing the judicial power to dismiss sua sponte for failure to comply with court orders). Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED and this action is hereby DISMISSED without prejudice for failure to prosecute and obey the Court’s order. Any remaining motions are DENIED as moot. DONE and ORDERED this 5th day of October, 2018. /s/ Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE Page 2 of 2

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