Sherman v. Baker et al

Filing 42

ORDER dismissing case without prejudice for Plaintiff Kenneth Jamal Sherman's lack of prosecution. Directions to the Clerk. Signed by Judge Marcia Morales Howard on 3/7/2025. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KENNETH JAMAL SHERMAN,
Plaintiff,
v.

Case No. 3:23-cv-653-MMH-LLL

KATRINA BAKER,
Defendant.
____________________________________
ORDER OF DISMISSAL WITHOUT PREJUDICE
Plaintiff Kenneth Jamal Sherman, an inmate of the Florida penal
system who is proceeding in forma pauperis, initiated this case by filing a pro
se Civil Rights Complaint (Doc. 1; Complaint) under 42 U.S.C. § 1983. One
Defendant remains – Katrina Baker.1 Sherman alleges that on November 12,
2022, Defendant Baker slapped him in the face three times and then
handcuffed him before continuing to hit him in the face, elbows, and neck. Id.
at 5. According to Sherman, Baker’s conduct amounted to an excessive use of
physical force in violation of his rights under the Eighth Amendment. Id. at 4.
Before the Court is Defendant’s Motion to Compel and Motion for
Sanctions (Doc. 30; Motion). Baker seeks Court intervention because Sherman

The Court dismissed without prejudice Sherman’s claims against the
Department of Corrections and Ricky Dixon. See Order (Doc. 9).
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has failed to meaningfully participate in discovery. See generally id. She
contends Sherman refused to appear for his August 28, 2024 deposition; failed
to respond or object to her written interrogatories, requests for admission, and
requests to produce; and ignored Baker’s September 3, 2024 telephone call in
which Baker tried to discuss Sherman’s position on the contents of the instant
Motion. See id. at 1-3. Considering Sherman’s refusal to participate, Baker
seeks a Court order compelling Sherman to appear for a deposition, directing
him to respond to Defendant’s properly served discovery requests, and
declaring Baker’s properly served requests for admission as admitted. Id. at 6.
Baker also asks the Court to impose sanctions, including an order dismissing
the Complaint and directing Sherman to pay reasonable expenses incurred
because of Sherman’s refusal to participate in discovery. Id. at 10. In support
of her requests, Baker provides an affidavit from Correctional Officer Jason
Bishop, in which he attests Sherman refused to leave his cell to participate in
the August 28, 2024 deposition (id. at 26-27); as well as two affidavits from
Classification Officer Briana Estep, in which she states that on August 20,
2024, she provided Sherman with the written notice of Sherman’s August 28,
2024 deposition (id. at 18-19) and also explains that on September 3, 2024,
Sherman refused to leave his cell to take the telephone call from defense
counsel (id. at 54-55).
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The Court previously advised Sherman that if he opposes any motion, he
has 14 days to respond. See Doc. 5. Despite this, Sherman failed to file a
response to the Motion or request more time to do so. The Court also
determined that Baker was authorized to depose Sherman during the
discovery period. See Order (Doc. 11 at 5). And when Sherman initiated this
case, the Court advised him of his obligation to “comply with the rules and
court orders” or “face sanctions, including dismissal.” See Notice to Pro Se
Litigant (Doc. 5). Additionally, after Baker answered the Complaint (Doc. 19),
the Court issued a Case Management and Scheduling Order advising Sherman
that (1) discovery must be completed by August 30, 2024; (2) he “must timely
respond to a discovery request”; and (3) “fail[ure] to cooperate in discovery”
may result in sanctions, including “dismissal.” See Case Management and
Scheduling Order (Doc. 20).
On October 16, 2024, after considering the representations Baker makes
in the Motion along with Sherman’s failure to comply with the Court’s many
directives, the Court directed Sherman to show cause, by November 13, 2024,
why this case should not be dismissed for his failure to comply with the Court’s
Orders, appear for the deposition, respond to discovery, or otherwise prosecute
the case. See Order to Show Cause (Doc. 33). In doing so, the Court advised
Sherman that his failure to timely comply may result in the dismissal of his
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case without further notice. See id. (citing Rule 3.10, Local Rules, United
States District Court for the Middle District of Florida). On November 1, 2024,
Sherman filed a document titled “Motion to Warranting Camera Surveillance”2
(Doc. 34). The Court struck that filing and reminded Sherman of the deadline
to respond to the Court’s October 16, 2024 Order to Show Cause. See Order
(Doc. 35).
When Sherman failed to respond to the October 16, 2024 Order to Show
Cause, the Court entered a Final Order to Show Cause (Doc. 26) directing
Sherman, by December 30, 2024, to (1) show cause why this case should not be
dismissed for his failure to comply with the Court’s Orders (Docs. 5, 33, 35) or
otherwise prosecute the case and (2) respond to Defendant’s Motion. See Final
Order to Show Cause (Doc. 36). The Court advised Sherman that when
responding to the Court’s Final Order to Show Cause, he should consider the
statute of limitations for his claims and noted that if the statute of limitations
on his claims has expired, any dismissal, even a dismissal without prejudice
for failure to prosecute, would likely bar any future litigation of these claims.
See id. The Court also advised Sherman that his failure to comply would result
in the dismissal of this case without further notice. See id.

2 Plaintiff’s filing (Doc. 34) predates the Order to Show Cause but was received

by the Court on October 18, 2024.
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Sherman then filed two responses, one on December 26, 2024, and one
on December 30, 2024. See Docs. 38, 40. In the responses, Sherman states he
has been unable to focus on litigating this case because he is still mourning the
September 2023 passing of his father. Doc. 38 at 1. Sherman also suggests he
is preoccupied with meeting deadlines in his other pending cases, explaining
he needs more time to respond to “all of this that’s piled up . . . in the courts in
the Middle and Northern District[s] of Florida,” as well as his case that is
pending in Leon County, Florida. Id. He also asserts he needs more time “to be
able to write all of the complaints that [he is] getting ready to file . . .” (id.),
including “several more complaints” he will be filing with this Court (Doc. 40).
Baker filed a Reply (Doc. 41; Reply), in which she states that Sherman has
failed to show he is willing and capable of diligently prosecuting this case and
his responses suggest that he does not intend to participate in discovery. To
that end, she argues the case should be dismissed for Sherman’s failure to
prosecute under Local Rule 3.10. Id. at 6.
A district court has inherent authority to manage its docket. See Equity
Lifestyle Prop., Inc. v. Fla. Mowing and Landscape Serv., Inc., 556 F.3d 1232,
1240 (11th Cir. 2009). This authority includes the power to dismiss a case for
failure to prosecute or failure to comply with court orders. Id. (citing Fed. R.
Civ. P. 41(b)); see also Hyler v. Reynolds Metal Co., 434 F.2d 1064, 1065 (5th
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Cir. 1970)3 (“It is well settled that a district court has inherent power to dismiss
a case for failure to prosecute . . . .”).
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may
dismiss a complaint for failure to prosecute or to comply with a court order or
the federal rules. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th
Cir. 1999). Dismissal under Rule 41(b) is appropriate where there is a clear
record of delay or willful contempt and an implicit or explicit finding that lesser
sanctions would not suffice. Id. at 1374 (quoting Goforth v. Owens, 766 F.2d
1533, 1535 (11th Cir. 1985)). And Local Rule 3.10(a) also provides that “[a]
plaintiff’s failure to prosecute diligently can result in dismissal if the plaintiff
in response to an order to show cause fails to demonstrate due diligence and
just cause for delay.”4
Here, in prosecuting this action, Sherman is required to comply with this
Court’s Orders. As of the date of this Order, Sherman has failed to comply with
the Court’s Orders to cooperate in discovery or respond to Baker’s Motion to

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), the Eleventh Circuit adopted as binding precedent all the decisions of
the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
A district court also has broad authority under Federal Rule of Civil
Procedure 37 to control discovery, including dismissal as the most severe sanction.
See Gratton, 178 F.3d at 1374.
6
4

Compel and Motion for Sanctions. After he failed to respond to the Court’s
October 16, 2024 Order to Show Cause, the Court issued its November 26, 2024
Final Order to Show Cause (Doc. 36) giving him an additional opportunity to
comply. In doing so, the Court advised Sherman that failure to fully respond
would result in dismissal of his case. Id. While Sherman’s responses to the
Final Order to Show Cause referenced the September 2023 passing of his
father, he also expressed that he needs an unspecified extension of time to
comply with the Court’s Orders and discovery requests because he is
overwhelmed with the number of pending cases he is litigating in federal and
state court, and he is busy preparing for the “filing [of] several more complaints
in this Court . . . .” Doc. 40. The inconsistent nature of these explanations sheds
no light on why Sherman refused to appear for his scheduled deposition or why
he still refuses to respond to any of Baker’s written discovery requests.
Notably, Rule 41(b) recognizes a district court’s inherent authority to dismiss
a case for want of prosecution “to prevent undue delays in the disposition of
pending cases and to avoid congestion” of court calendars. Link v. Wabash R.
Co., 370 U.S. 626, 629-30 (1962). Sherman’s inability to adhere to the Court’s
deadlines or otherwise follow the Court’s Orders because he is too consumed
with other actions he is, or anticipates, pursuing is the type of delay and
congestion Rule 41(b) seeks to avoid. Sherman’s actions show a clear record of
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delay, and the Court finds that dismissal for lack of prosecution under Rule
41(b) and Local Rule 3.10 is appropriate in this case.
Finding Sherman has failed to meaningfully participate in discovery
despite being ordered to do so and concluding that he has failed to show due
diligence and just cause for his delay, the Court finds that no sanction short of
dismissal is sufficient to sanction Plaintiff’s conduct.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

This case is DISMISSED without prejudice for Plaintiff

Kenneth Jamal Sherman’s lack of prosecution.5
2.

The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of March,
2025.

5 Whether this dismissal actually results in a dismissal with prejudice depends

on whether the statute of limitations has expired. That question is not before this
Court, but may be answered in a subsequent proceeding if Sherman refiles his claims
against Defendant Baker.
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Jax-7
c:
Kenneth Jamal Sherman, #130883
Counsel of Record

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