Stearns v. Shinseki

Filing 7

REPORT AND RECOMMENDATIONS that the 1 Complaint be dismissed without prejudice and that this case be closed. Objections to R&R due by 2/16/2010. Signed by Magistrate Judge W. Leon Barfield on 01/29/2010. (thb)

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IN THE UNITED STATES DISTRICT COURT : 32 FOR THE SOUTHERN DISTRICT OF GEORGIA010 JAN) 29 AM8 AUGUSTA DIVISION STANLEY STEARNS, Plaintiff,
V.

ERIC K. SHINSEKI, Secretary of the Department of Veterans Affairs, Defendant.

) ) ) ) ) ) ) ) ) )

CV 109-102

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff commenced the above.captionedpro se employment discrimination case and is proceeding in forma pauperis (IFP"). On October 15, 2009, the Court reviewed Plaintiff's complaint in conformity with the IFP statute. .See 28 U.S.C. § 191 5(e)(2)(B)(i) & (ii). Because of pleading deficiencies in Plaintiff's complaint, the Court ordered him to amend his complaint. (Doc. no. 4). Plaintiff was given fifteen (15) days to comply, and he was warned that, if he wanted to proceed with his case, he must file an amended complaint. ( j ). Plaintiff failed to respond to the Court's October 15, 2009 Order. On January 6, 2010, the Court afforded Plaintiff fourteen (14) additional days to amend his complaint in accordance with the Court's October 15th Order. (Doc. no. 6). Plaintiff was warned that, if he failed to comply with the Court's October 15th Order after this 14-day extension, the Court would recommend dismissal of his case for want of prosecution. (jj at 2). Plaintiff has not responded to the Court's Orders.

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." &iuitv Lifestyle Props.. Inc. v. Fla. Mowing &Landscape Serv.. Inc., 556 F.3d 1232, 1240 (11th Cir. 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. (citing Fed. R. Civ. P. 41(b)); see also Ivler v. Reynolds Metal Co., 434 F. 2d 1064, 1065 (5th Cir. 1970)' ("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 prosecution, with or without prejudice... [for] failure to prosecute a civil action with reasonable promptness." Loc. R. 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, Plaintiff's failure to comply with the Court's Orders, or even to provide the Court with an explanation for his failure to amend his complaint, amounts not only to a failure to prosecute, but also an abandonment of his case. This is precisely the type of neglect contemplated by the Local Rules. Furthermore, because Plaintiff is proceeding IFP, 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

1 1n Bonner v. City of Prichard, 661 F.2d 1206, 1209(11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 2

voiced a dislike for the harshness of dismissing a pro se case with prejudice prior to an adjudication on the merits.' See. e.g., Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d
,1

Cir. 1993). 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 without prejudice until such time as Plaintiff is willing to file his case and pursue it. For the reasons set forth herein, the Court REPORTS and RECOMMENDS that this case be DISMISSED without prejudice and that this case be CLOSED. SO REPORTED and RECOMMENDED thjyof January, 2010, at Augusta, Georgia.

W. NBIELLQ UNITED STATES MAG RATE JUDGE

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