AUSTINT v. GEORGIA STATE PRISON et al

Filing 5

ORDER OF DISMISSAL. Because Plaintiff has failed to comply with the Court's instructions and orders and otherwise failed to diligently prosecute his claims, this action is DISMISSED without prejudice. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 6/3/2021. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AUSTIN T. DAVIS,

:
:
Plaintiff,
:
:
VS.
:
:
GEORGIA STATE PRISON, et al., :
:
Defendants.
:
________________________________ :

NO. 5:20-cv-00469-MTT-MSH

ORDER
Plaintiff Austin T. Davis, a prisoner most recently confined at the Georgia State
Prison in Reidsville, Georgia, has filed a pro se Complaint seeking relief under 42 U.S.C.
§ 1983 (ECF No. 1). On April 7, 2021, Plaintiff was ordered to pay the Court’s filing fee
or file a motion for leave to proceed in forma pauperis. Plaintiff was also directed to amend
or supplement his Complaint to provide additional information about his claims. Plaintiff
was given twenty-one (21) days to comply, and he was warned that the failure to fully and
timely comply with the Court’s notice could result in the dismissal of his Complaint. See
generally, Order, Apr. 7, 2021, ECF No. 3.
The time for compliance passed with no response from Plaintiff. As such, Plaintiff
was ordered to respond and show cause why his lawsuit should not be dismissed for his
failure to comply with the Court’s previous orders and instructions. Plaintiff was again
given twenty-one (21) days to comply, and he was warned that the failure to respond would
result in the dismissal of his Complaint. See generally Order, May 6, 2021, ECF No. 4.

The time for compliance has again passed without a response from Plaintiff.
Because Plaintiff has failed to comply with the Court's instructions and orders and
otherwise failed to diligently prosecute his claims, this action is DISMISSED without
prejudice. See Fed. 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)). 1
SO ORDERED, this 3rd day of June, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

It appears the statute of limitations may have run or is about to run on Plaintiff’s claims.
“[W]here a dismissal without prejudice has the effect of precluding the plaintiff from refiling his claim due to the running of the statute of limitations, it is tantamount to a dismissal
with prejudice.” Stephenson v. Doe, 554 F. App’x 835, 837 (11th Cir. 2014) (citing Justice
v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993)). If this dismissal is effectively
with prejudice, dismissal is nonetheless appropriate because “a clear record of delay or
willful misconduct exists, and . . . lesser sanctions are inadequate to correct such conduct.”
Stephenson, 554 F. App’x at 837 (citations omitted). The Court ordered plaintiff to comply
with its orders and instructions on multiple occasions and specifically warned Plaintiff each
time that failure to comply would result in dismissal of this action. Thus, even though this
dismissal is intended to be without prejudice, dismissal with prejudice would also be
appropriate. See Hickman v. Hickman, 563 F. App’x 742, 744 (11th Cir. 2014) (per curiam)
(upholding sua sponte dismissal with prejudice for failure to properly respond to the district
court’s order); Eades v. Ala. Dep’t of Human Res., 298 F. App’x 862, 864 (11th Cir. 2008)
(per curiam) (same).
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