Kidd v. Oliver

Filing 9

ORDER ADOPTING 7 REPORT AND RECOMMENDATION. This action is DISMISSED without prejudice for failure to prosecute & obey the Court's order as set out. Signed by District Judge Terry F. Moorer on 12/6/21. (copy mailed to Plf on 12/7/21) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JON-CLAUDE COLLINS KIDD,
Petitioner,
vs.
NOAH PRIE OLIVER, Warden,
Respondent.

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CIV. ACT. NO. 1:21-cv-256-TFM-B

ORDER
On November 10, 2021, 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. 7. No objections were filed and the mail was returned as undeliverable
with a stamp of “no longer here.”
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

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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., 432 F.3d at 1337 (describing the judicial power to dismiss
sua sponte for failure to comply with court orders).
Since the filing of his petition on April 15, 2021, there has been no additional action by the
Petitioner and all mail has been returned as undeliverable. Petitioner made no effort to keep the
Court apprised of his location and failed to advise the Court of his change in address.
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 and this action is DISMISSED without prejudice for failure
to prosecute and obey the Court’s orders.
DONE and ORDERED this 6th day of December, 2021.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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