CLARK v. TODD et al

Filing 10

ORDER DISMISSING without prejudice 1 Complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 12/14/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KENNETH CLARK,

:
:
Plaintiff,
:
VS.
:
:
JACK ALLEN TODD, et al.,
:
:
Defendants.
:
________________________________ :

NO. 5:16-CV-00350-MTT-CHW

ORDER
Pro se Plaintiff Kenneth Clark, who is confined at the Baldwin State Prison in
Hardwick, Georgia, filed a pleading construed by the Court as a Complaint under 42
U.S.C. § 1983 but did not pay the filing fee or file a proper motion to proceed without the
prepayment of the filing fee. Accordingly, the United States Magistrate Judge directed
Plaintiff to either pay the filing fee or submit to the Court a proper and complete motion
for leave to proceed in forma pauperis.

Plaintiff was also directed to recast his

Complaint on the Court’s standard form. Plaintiff was warned that his failure to comply
with the Magistrate Judge’s Order would result in dismissal of Plaintiff’s action. Plaintiff
was further advised that if he no longer wished to proceed with this action, he should
notify the Court. Plaintiff was given twenty-one (21) days to comply with the Court’s
Order. (Order, Aug. 30, 2016, ECF No. 5.)
Plaintiff filed a certified copy of his prison trust fund account statement, but he
failed to file a motion to proceed without prepayment of the fees, an affidavit supporting
such motion, or a recast complaint in accordance with the Magistrate Judge’s Order.

Instead, Plaintiff filed “objections” to the Order accusing various Court officials and
employees of “sabotoge [sic],” “[f]raud,” treason, and sedition, among other things. The
Magistrate Judge explained to Plaintiff that to the extent he sought to contend any
Defendants violated his constitutional rights or rights secured under federal statutes,
Plaintiff would be required to refile his Complaint on the Court’s standard form and
complete the motion and affidavit to proceed without prepayment of fees in accordance
with the Court’s August 30, 2016 Order. The Magistrate Judge offered Plaintiff one final
opportunity to comply by filing the appropriate documents by November 14, 2016.
Plaintiff was again warned that his failure to comply would result in this action being
dismissed. (Order, Oct. 31, 2016, ECF No 8.)
Plaintiff responded by filing another “objection” (ECF No. 9) reiterating many of
the same claims he made in his prior objection; but Plaintiff failed again to recast his
claims or submit his motion and affidavit to proceed in forma pauperis as directed by the
Court. Accordingly, because of Plaintiff’s failure to pay the required filing fee, failure to
comply with the Court’s instructions and orders, and failure to otherwise diligently
prosecute this action, his Complaint shall be DISMISSED without prejudice.1 See Fed.

1

It is unclear from Plaintiff’s allegations whether the statute of limitations on any of
Plaintiff’s claims may bar their refiling. A dismissal without prejudice is tantamount to a
dismissal with prejudice if the statute of limitations may bar refiling. See Justice v.
United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993); Burden v. Yates, 644 F.2d 503,
505 (5th Cir. 1981). Dismissals with prejudice are only appropriate where “the district
court finds both that a clear record of delay or willful misconduct exists, and that lesser
sanctions are inadequate to correct such conduct.” Stephenson v. Doe, 554 F. App’x 835,
837 (11th Cir. 2014) (per curiam). As noted above, Plaintiff in this case has been given
ample opportunity to comply with the Court’s orders and multiple warnings that failure to
comply could result in the dismissal of his Complaint. See Moon v. Newsome, 863 F.2d
2

R. Civ. P. 41; see also Brown v. Tallahassee Police Dep't, 205 F. App'x 802, 802 (11th
Cir. 2006) (per curiam) (“The court may dismiss an action sua sponte under Rule 41(b)
for failure to prosecute or failure to obey a court order.”) (citing Lopez v. Aransas Cnty.
Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir.1978)).
SO ORDERED, this 14th day of December, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

835, 837 (11th Cir. 1989) (noting that when a litigant has been forewarned, dismissal for
failure to obey a court order is not an abuse of discretion). Plaintiff’s failure “on multiple
occasions to comply with the court-ordered deadlines in this case . . . evidence[s] ‘a clear
pattern of delay’ or ‘contumacious conduct’ on [his] part, as opposed to mere negligent
conduct.” Eades v. Ala. Dep’t of Human Res., 298 F. App’x 862, 864 (11th Cir. 2008)
(per curiam). And Plaintiff’s repeated failure to respond appropriately to the Court’s
orders after being made aware that his Complaint would be dismissed demonstrates that
lesser sanctions would be futile. See, e.g., Calloway v. Perdue Farms, Inc., 313 F. App’x
246, 250 (11th Cir. 2009) (per curiam) (holding that “district court’s determination that
lesser sanctions would be futile was not unreasonable” where party was warned that his
failure to respond to a motion would result in dismissal of his complaint with prejudice).
Thus, even though the Court intends this dismissal to be without prejudice, a dismissal
with prejudice could also be appropriate.
3