Myers v. Kinney et al

Filing 26

ORDER DISMISSES this action without prejudice for failure to prosecute and failure to follow this Court's 25 Order. The Clerk of Court is DIRECTED to CLOSE this case and enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 9/2/2015. (csr)

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MARCELLE GORDON MEYERS,
Plaintiff,

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CIVIL ACTION NO.: CV214-67

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V.

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JOY LYNN TURNER,
Defendant.

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ORDER

This matter is before the Court on Plaintiff's failure to
respond to this Court's May 12, 2015 Order, dkt. no. 25. As
detailed below, Plaintiff has failed to respond to that Order or
to otherwise pursue his claims against Defendant Joy Lynn
Turner. Consequently, the Court hereby DISMISSES this action
without prejudice for failure to prosecute and failure to follow
this Court's Orders. The Clerk of Court is DIRECTED to CLOSE
this case.
BACKGROUND

The procedural history of this case is laid out in detail
in this Court's Order of May 12, 2015. Dkt. No. 25,

pp. 3-4.

Put succinctly, after filing this action against several
Defendants, Plaintiff has repeatedly failed to take action to

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prosecute his claims. On May 12, 2015, the Court dismissed
Plaintiff's claims against several Defendants, because he failed
to serve those Defendants with his Complaint. Id., at p. 4-5.
The Court explained that it previously notified Plaintiff that
his failure to serve those Defendants would result in dismissal
of his claims against them. Id. Additionally, the Court
dismissed claims against several other Defendants because
Plaintiff failed to oppose those Defendants' Motions to Dismiss.
Id., at p. 5-7.
At the conclusion of its May 12, 2015 Order, the Court
noted that Plaintiff's only remaining claims were those against
Defendant Turner. Id., at p. 7-8. However, because Plaintiff
had not taken any action to pursue those claims, the Court
ordered Plaintiff to notify the Court, within fourteen days,
whether he intended to pursue his claims against Turner. Id.
The Court made clear that if Plaintiff failed to timely respond,
the Court would dismiss all claims against Defendant Turner for
failure to prosecute. Id. Plaintiff has not filed any response
to that Order. Indeed, Plaintiff last filed a pleading in this
case on December 11, 2014. See, Dkt. No. 16.
DISCUSSION

This Court may dismiss a plaintiff's claims sua sponte
pursuant to Federal Rule of Civil Procedure 41(b) ("Rule 41(b)")
and the court's inherent authority to manage its docket. Link
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v. Wabash Railroad Company, 370 U.S. 626 (1962);' Coleman v. St.
Lucie Cty. Jail, 433 F. App'x 716, 718 (11th Cir. 2011) (citing
Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule
41(b) allows for the involuntary dismissal of a plaintiff's
claims where he has failed to prosecute those claims, comply
with the Federal Rules of Civil Procedure or local rules, or
follow a court order. Fed. R. Civ. P. 41(b); see also Coleman,
433 F. App'x at 718; Sanders v. Barrett, No. 05-12660, 2005 WL
2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks,
983 F.2d 189, 192 (11th Cir. 1993)); cf. Local R. 41.1(b)
("[T]he assigned Judge may, after notice to counsel of record,
sua sponte . . . dismiss any action for want of prosecution,
with or without prejudice[,] . . . [based on] willful
disobedience or neglect of any order of the Court." (emphasis
omitted)). Additionally, a district court's "power to dismiss
is an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits." Brown v. Tallahasse
Police Dep't, 205 F. App'x 802, 802 (11th Cir. 2006) (quoting
Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).

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In Wabash, the Court held that a trial court may dismiss an action
for failure to prosecute "even without affording notice of its
intention to do so." 370 U.S. at 633. Nonetheless, in the case at
hand, the Court advised Plaintiff that his failure to respond to the
Court's Order would result in dismissal of his claims.
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II

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It is true that dismissal with prejudice for failure to
prosecute is a "sanction . . . to be utilized only in extreme
situations" and requires that a court "(1) conclud[e] a clear
record of delay or willful contempt exists; and (2)

mak[e] an

implicit or explicit finding that lesser sanctions would not
suffice." Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App'x
623, 625-26 (11th Cir. 2006) (quoting Morewitz v. West of Eng.
Ship Owners Mut. Prot. & Indem. Ass'n (Lux.), 62 F.3d 1356, 1366
(11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App'x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366)
By contrast, dismissal without prejudice for failure to
prosecute is not an adjudication on the merits, and, therefore,
courts are afforded greater discretion in dismissing claims in
this manner. Taylor, 251 F. App'x at 619; see also Coleman, 433
F. App'x at 719; Brown, 205 F. App'x at 802-03.
While the Court exercises its authority to dismiss cases
with caution, dismissal is appropriate in the case at hand. See
Coleman, 433 F. App'x at 719 (upholding dismissal without
prejudice for failure to prosecute where plaintiff did not
respond to court order to supply defendant's current address for
purpose of service). The Court specifically inquired of
Plaintiff as to whether he intends to pursue his claims against
Defendant Turner. Moreover, the Court forewarned Plaintiff that
should he fail to respond to that inquiry, his claims against
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Defendant Turner would be dismissed.

Despite these warnings,

Plaintiff has failed to comply with this Court's Orders or take
any action in this case in nearly ten months. Accordingly, no
lesser sanction than dismissal will suffice, and Plaintiff's
claims against Defendant Turner are DIMISSED WITHOUT PREJUDICE.
CONCLUSION

For the above-stated reasons, the Court DISMISSES WITHOUT
PREJUDICE Plaintiff's claims against Defendant Turner, the sole

remaining Defendant for failure to prosecute and failure to
follow the Court's Orders. The Clerk of Court is directed to
enter the appropriate judgment of dismissal and to CLOSE this
case.
SO ORDERED,

this

day of

LISA GODBEY WOOD, CHIEF JUDGE
UNI\rED SATES DISTRICT COURT
SOUHERN DISTRICT OF GEORGIA

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, 2015.