Ellison v. Abbe et al

Filing 14

REPORT AND RECOMMENDATIONS that Plaintiff's motion for IFP be Denied, that this case be Dismissed without prejudice, and that this case be Closed -re 1 Complaint filed by Sharon B. Ellison, 2 MOTION for Leave to Proceed in forma pauperis filed by Sharon B. Ellison Objections to R&R due by 4/3/2009. Signed by Magistrate Judge W. Leon Barfield on 3/16/09. (aeg)

IN THE UNITED STATES DISTRICT COURT FOR THE.SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION SHARON B. ELLISON, Plaintiff, V. CHRISTOPHER ABBE, et al. Defendants. ) ) ) ) ) ) ) ) )

FLEO U.S. 0JSTRCT COU, AUUS TA WV.

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CV 108-161

MAGISTRATE JIJDGE'S REPORT AND RECOMMENDATION

Plaintiff flied the above-captioned civil rights case pursuant to 42 U.S.C. § 1983. She is proceeding pro se and has requested permission to proceed informa pauperis (1FF'). However, Plaintiff did notutilize the forms used by incarcerated litigants in the Southern District of Georgia, and on December 9, 2008, the Court directed Plaintiff to re-file her complaint and IFP motion within thirty (30) days because Plaintiffs filings did not provide the Court with the information necessary to determine whether she should be allowed to proceed IF?. (Doe. no.4, p. 1). Plaintiff was warned that failure to comply would result in a recommendation that her case be dismissed without prejudiķe. (J4, at 2). Instead of filing the proper paperwork. Plaintiff proceeded to file objections to the Decembcr 9th Order, contending that the required forms requested information outside the. scope of 28 U.S.C. § 1915(a). The Honorable J. Randal Hall, United States District Judge, overruled those objections in an Order dated January 26, 2009. (Doe. no. 10,, p. 1 n.l).

Despite the overruling of her objections, Plaintiff still failed to submit her complaint and ]FP motion on the proper forms, and oniFebruary 17,2009, the undersigned granted Plaintiff ten (10) additional days to submit the requisite paperwork. (Doe. no. 13, p. 2). Plaintiff was again cautioned that failure to comply after this ten-day extension would "undoubtedly" result in a recommendation that her case be dismissed for want of prosecution. (n,. (citing Loc. R. 41.1(c))). The time for responding to this most recent Order has expired, and unfortunately, Plaintiff has not submitted the documents required by the Court's Orders.t The Eleventh Circuit has stated that "[a] district court has inherent authority to manage its own docket 'so as to achieve the orderly and expeditious disposition of cases." Equity Lifestyle Props.. Inc. v. Fla. Mowing & Landscape Serv.Jmc. - F.3d No. 07-

11342,2009 WL 250601, at *4(11th Cit Feb. 4,2009) (quoting Chambers v. Nasco. Inc., 501 U.S. 32, 43 (1991)). This authority includes the power to dismiss a case for failure to prosecute or failure to comply with a court order. I(citing Fed. R. Civ. P. 41(b)); see also Hyler v. Reynolds Metal Co., 434 F.2d 1064, 1065 (5th Cit 1970)2 ("It is well settled that a district court has inherent power to dismiss a case for failure to prosecute . . . Moreover, the Local Rules of the Southern District of Georgia dictate that an "assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of 1 Jj addition, Plaintiff cannot proceed lIP unless she submits the requisite Trust Fund Account Statement and consents to the collection of the entire $350.00 filing fee in installments. Wilsonv. Sargent, 313 F.3d 1315, 1319, 1321 (llthCir. 2002) (per curiam) (citing 28 U.S.C. § 1915). Plaintiffs failure to file a proper IF? motion prevented this case from progressing to the point where she would be required to complete and return those forms. 2lnBonnerv. City of Prichard, 661 F.2d 1206, 1209(11th Cit 1981) (en ' banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit banded down prior to October 1, 1981. 2

ii prosecution, with or without prejudice.. . [forj. failure to prosecute a civil action with reasonable promptness.". .Loc. Rˇ 41.1(c). The test for determining the appropriateness of dismissal is whether there is "a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533,1535(11th Cir. 1985). Here, ?Iaintiff's failure to comply with the Court's December 9th and February 17th Orders amounts not only to a failure toˇ prosecute, but also an abandonment of her case. This is precisely the type of neglect contámplzted by the Local Rules. Furthermore,. because Plaintiff sought permission tO proceed JFP, the COurt finds that the imposition of monetary sanctions is not a feasible sanction. However, the Court recognizes that Plaintiff is proceeding pro Se, and courts have voiced a dislike for the harshness of dismissing a pro se case with prejudice priOr to an adjudication on the.merits.3 See. e.g.. Minnettev. Time Warner, 997 F.2d 1023, 1027 (2d Cit. 1993); Dickson v. Ga. State Bd. of Pardons & Paroles. No. 1:06-CV-1310-JTC, 2007ˇˇ WL 2904168, at . (N.D.. Ga. Oct. 3, 2007). Thus, the Court is not persuaded that it would be appropriate to dismiss the instant action with prejudice. The Court is not permanently barring Plaintiff from bringing a meritorious claim. It is simply recommending dismissing the case withoul prejudice until such time as Plaintiff is willing to ifie her case and pursue i.

3Uniess the Court specifies otherwise, a dismissal for failure to prosecute operates as Fed. R Civ. P. 41(b). an adjudication on the merits. . 3

In sum, Plaintiff has been directed repeatedly to submit the requisite forms and has been warned of the consequences of her failure to comply on multiple occasions. As Plaintiff has failed to submit a proper complaint and IFP motion, the Court REPORTS and RECOMMENDS that Plaintiff's motion to proceed IFP be DENIEI) (doe. no. 2), this case be DISMISSED without prejudice, and that this casebe CLOSED. SO REPORTED and RECOMMENDED Georgia.

tbis/427 of March, 2009, at Augusta,

W. LEON 13iRFIEth ,/ \ UMTED STkTES MAGISTAkATE JUDGE

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