Ussery v. Roundtree et al

Filing 11

REPORT AND RECOMMENDATION Dismissing Without Prejudice re 1 Complaint filed by Roger Junior Ussery. Objections to R&R due by 5/27/2022. Signed by Magistrate Judge Brian K. Epps on 5/10/22. (loh)

Case 1:22-cv-00013-JRH-BKE Document 11 Filed 05/10/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
ROGER JUNIOR USSERY,

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Plaintiff,
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v.
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CV 122-013
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RICHARD ROUNDTREE, Sheriff;
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JARED WILLIAMS, District Attorney;
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WADE PADGETT, Judge;
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KELLY WILLIAMSON, Attorney;
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JASON, Chief Magistrate in Columbia
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County; and BOBBY CHRISTINE, District )
Attorney,
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Defendants.
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________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
________________________________________________________
Plaintiff, formerly incarcerated at Charles B. Webster Detention Center, commenced
the above-captioned case pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se. On
April 14, 2022, because Plaintiff had been released from jail, the Court ordered Plaintiff to
pay the filing fee or submit a new motion to proceed in forma pauperis (“IFP”) within
twenty-one days. (Doc. no. 9.) The Court also extended the deadline by the same twentyone days for submitting an amended complaint as required by the Court’s April 8, 2022
Order.1 (See id.; doc. no. 7.) Plaintiff was cautioned that failure to respond in the requisite

twenty-one days would be an election to have this case voluntarily dismissed without
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The Court screened Plaintiff’s original complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A and identified multiple pleading deficiencies that prevented the Court
from determining Plaintiff had any viable claims. (See doc. no. 7.) However, in recognition of
Plaintiff’s pro se status, the Court afforded him an opportunity to amend his pleadings. (Id. at 5.)

Case 1:22-cv-00013-JRH-BKE Document 11 Filed 05/10/22 Page 2 of 3

prejudice. (See id.) The time to respond has passed, and Plaintiff has not complied with the
Court’s April 14th Order, nor has he provided the Court with any explanation why he has not
complied.
A district court has authority to manage its docket to expeditiously resolve cases, and
this authority includes the power to dismiss a case for failure to prosecute or failure to
comply with a court order. Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv.,
Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)); see also Eades v.
Ala. Dep’t of Human Res., 298 F. App’x 862, 863 (11th Cir. 2008) (per curiam) (“District
courts possess the ability to dismiss a case . . . for want of prosecution based on two possible
sources of authority: Fed. R. Civ. P. 41(b) or their inherent authority to manage their
dockets.”). 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] [w]illful disobedience or neglect of
any order of the Court; or [a]ny other failure to prosecute a civil action with reasonable
promptness.” Loc. R. 41.1 (b) & (c). Finally, dismissal without prejudice is generally
appropriate pursuant to Rule 41(b) where a plaintiff has failed to comply with a court order,
“especially where the litigant has been forewarned.” Owens v. Pinellas Cnty. Sheriff’s
Dep’t, 331 F. App’x 654, 655 (11th Cir. 2009) (per curiam) (citing Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989)).
Here, the Court ordered Plaintiff to submit the filing fee or a new IFP motion, along
with an amended complaint, within twenty-one days of its April 14, 2022 Order. (Doc. no.
9.) The Court further warned Plaintiff that, in the event he failed to do so, the Court would
treat Plaintiff’s failure to respond as an election to voluntarily dismiss his case and would
recommend dismissal of his case, without prejudice. (See id.) Plaintiff’s failure to comply
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Case 1:22-cv-00013-JRH-BKE Document 11 Filed 05/10/22 Page 3 of 3

with the terms of that Court Order, or even to provide the Court with an explanation for his
failure to submit the filing fee, a new motion to proceed IFP, or an amended 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 previously sought permission to proceed IFP, the Court finds that the imposition of
monetary sanctions is not a feasible sanction. Therefore, dismissal for want of prosecution is
appropriate.
The Court recognizes that Plaintiff is proceeding pro se and acknowledges that courts
have voiced a dislike for the harshness of dismissing a pro se case with prejudice prior to an
adjudication on the merits. 2 See, e.g., Cordes v. Chipi, 773 F. App’x 551, 552-53 (11th Cir.
2019) (per curiam); Dickson v. Ga. State Bd. of Pardons & Paroles, No. 1:06-CV-1310-JTC,
2007 WL 2904168, at *6 (N.D. Ga. Oct. 3, 2007). Thus, the Court is simply recommending
dismissal without prejudice until such time as Plaintiff is willing to file his case and pursue
it. Accordingly, the Court REPORTS and RECOMMENDS that this case be DISMISSED
without prejudice.
SO REPORTED and RECOMMENDED this 10th day of May, 2022, at Augusta,
Georgia.

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).
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