Tibbs v. Crabtree et al

Filing 32

ORDER ADOPTING 29 REPORT AND RECOMMENDATION. This action is DISMISSED without prejudice for failure to prosecute and obey the Court's orders as set out. Signed by District Judge Terry F. Moorer on 1/6/21. (skb) (Copy to Plaintiff 1/6/21)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JONATHAN TYRONE TIBBS,
Plaintiff,
vs.
JAY CRABTREE, et al.,
Defendants.

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CIV. ACT. 1:19-cv-0703-TFM-N

MEMORANDUM OPINION AND ORDER
On December 4, 2020, the Magistrate Judge entered a report and recommendation which
recommends this action be dismissed without prejudice for failure to prosecute and to comply with
the court’s orders. See Doc. 29. No objections were filed by either Plaintiff or Defendants.
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. 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 v. Perimeter Mortg. Funding Corp.,
715 F. App’x 912, 915 (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). “[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, 863 F.2d at 837 (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
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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., 432 F.3d at 1337 (describing the judicial power to dismiss
sua sponte for failure to comply with court orders).
As noted in the Report and Recommendation, on September 23, 2020, the Court convered
the answer and special report to a motion for summary judgment and directed Plaintiff to file a
response by November 9, 2020. The order was returned as undeliverable and no response was
filed. Further, investigation revealed that Plaintiff was no longer incarcerated at the Madison
County Jail nor was he in the custody of the Alabama Department of Corrections. He had been
warned on several occasions that failure to notify the court of a change in address would result in
the dismissal of this lawsuit for failure to prosecute and obey court orders. See Docs. 7, 10, 12.
Further, the Report and Recommendation was also returned as undeliverable. See Doc. 31.
Therefore, the Court is following through on its warning and dismissing this action.1
Accordingly, after due and proper consideration of all portions of this file deemed relevant
to the issues raised, and there having been no objections filed, the Report and Recommendation of
the Magistrate Judge is ADOPTED. Accordingly, this action is DISMISSED without prejudice
for failure to prosecute and obey the Court’s orders.
DONE and ORDERED this 6th day of January, 2021.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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Though the Court could have proceeded with an unopposed motion for summary judgment, given
that Plaintiff did not receive the order converting the motion, the Court agrees with the Magistrate
Judge that dismissal without prejudice under Fed. R. Civ. P. 41 is more appropriate.
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