Stevens v. United States et al

Filing 61

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANTS 39 Defendants' Motion, DISMISS without prejudice Plaintiff's 1 Complaint, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE t his case. It is also RECOMMENDED that the Court DISMISS as moot Defendants' pending 36 MOTION for Summary Judgment and DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 2/24/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/10/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

RAYFORD STEVENS,
Plaintiff,

CIVIL ACTION NO.: 2:14-cv-178

v.
UNITED STATES OF AMERICA; DR.
PETER LIBERO; PA B. AREMU; and MRS.
MOON,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint for
Lack of Prosecution and Failure to Comply with Court Orders. (Doc. 39.) Plaintiff filed a
Response. (Doc. 42.) For the reasons which follow, I RECOMMEND the Court GRANT
Defendants’ Motion, DISMISS without prejudice Plaintiff’s Complaint, and DIRECT the
Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case. I also
RECOMMEND the Court DISMISS as moot Defendants’ pending Motion for Summary
Judgment and DENY Plaintiff leave to appeal in forma pauperis. The Court DISMISSES as
moot Plaintiff’s Motion for Order to Require Defendants to provide him with Copies of Laws.
(Doc. 52.)
BACKGROUND
Plaintiff filed this cause of action in December 2014 pursuant to the Federal Tort Claims
Act, 28 U.S.C. §§ 1346 and 2671, et seq. (“FTCA”), and Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleged Defendants’ actions caused

him to lose vision in his left eye. (Doc. 1.) Defendants filed an Answer to Plaintiff’s Complaint
on February 8, 2016, (doc. 21), and the Clerk of Court entered a Scheduling Notice on this same
date advising the parties that discovery was to close on June 27, 2016, (doc. 22). Defendants
moved to amend the Scheduling Notice as to the expert disclosure deadlines, and the Court
granted this motion. (Doc. 27.) Plaintiff then filed a Motion for Extension of Time to Complete
Discovery. (Doc. 28.) The Court granted Plaintiff’s Motion and set the deadline for the close of
discovery as July 27, 2016. (Doc. 30.)
Defendants filed a Motion to Compel and for Sanctions, arguing that Plaintiff failed to
participate in discovery. (Doc. 32.) Plaintiff then filed a Motion for Reconsideration of the
Court’s May 26, 2016, Order granting Defendants’ Motion to Amend the Scheduling Notice as
to the expert disclosure deadlines. (Doc. 33.) The Court granted both portions of Defendants’
Motion and deferred ruling on Plaintiff’s Motion for Reconsideration. (Doc. 35.) In response,
Plaintiff filed a Motion for Extension of Time, to which Defendants responded. (Docs. 38, 40.)
In his Motion for Reconsideration, Plaintiff sought reconsideration of the Court’s Order
regarding the expert disclosure deadlines. Plaintiff maintained that he should be allowed the
opportunity to obtain counsel and an expert to assist him in this case. (Doc. 33, p. 2.) Relatedly,
in his Motion for Extension of Time, Plaintiff once again sought additional time to obtain
counsel to assist him in this case. Plaintiff maintained he has a limited education, and the only
reason he was able to commence this cause of action is because he had the assistance of a fellow
inmate. However, that inmate was transferred from the Federal Correctional Institution in Jesup,
Georgia, (“FCI Jesup”). (Doc. 38, p. 2.) Plaintiff stated his request was made in good faith and
was not designed or intended to delay or prolong the litigation. (Id. at p. 5.) Additionally,

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Plaintiff asserted he would diligently abide by any and all future instructions from the Court.
(Id.) As set forth below, this did not happen.
In its August 12, 2016, Order, the Court found Plaintiff’s course of conduct in this case
showed a disregard for this Court’s directives and belied Plaintiff’s contentions. (Doc. 35.) In
granting Defendants’ Motion to Compel, the Court specifically found that Plaintiff did not
answer Defendants’ discovery requests, as previously instructed, nor did he respond to
Defendants’ Motion. (Doc. 35, p. 4 (quoting Doc. 11, p. 15).) The Court again instructed
Plaintiff to respond to Defendants’ discovery requests within ten (10) days of its August 12,
2016, Order. (Id.) Plaintiff was forewarned that his failure to follow this Court’s directives
would result in the dismissal of this cause of action as a sanction. Id. Unfortunately, Plaintiff
failed to heed this warning. On September 16, 2016, the Court denied Plaintiff’s Motions for
Extension of Time and once again noted his disregard for this Court’s Orders. (Doc. 43.)
As the Court has informed Plaintiff, his inability or lack of desire to respond
appropriately to this Court’s instructions—for whatever reason—will no longer be tolerated.
(Doc. 43, p. 3.) Plaintiff is a pro se litigant, and as such, his pleadings are entitled to some
measure of leniency which is not applicable to those litigants who are represented. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”)
(emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff is still bound by this Court’s directives and all applicable procedural rules. McNeil v.
United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.”).

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Although Defendants filed a Motion for Summary Judgment, they have also filed a
Motion to Dismiss based on Plaintiff’s failure to prosecute his claims and his failure to comply
with this Court’s Orders. Because the Court agrees that Plaintiff has not prosecuted his claims or
complied with this Court’s Orders, the Court addresses Defendants’ Motion to Dismiss rather
than their Motion for Summary Judgment.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to prosecute his claims. For the reasons set forth below, I
RECOMMEND that the Court GRANT Defendants’ Motion to Dismiss, DISMISS without
prejudice Plaintiff’s Complaint, and DENY him leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute, for Failure to Follow this Court’s Orders, and as
a Discovery Sanction
A district court may dismiss a plaintiff’s claims for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to
manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 1 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
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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. Here, Plaintiff was forewarned on more than
one occasion that his failure to participate in the requisite discovery process or to follow this Court’s
Orders would result in the dismissal of his Complaint.
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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. Tallahassee Police Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
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 discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute Section 1983 complaint where plaintiff did not respond
to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute, because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute

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Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and
court had informed plaintiff that noncompliance could lead to dismissal).
Indeed, under Rule 37 of the Federal Rules of Civil Procedure, if a party fails to obey an
order to provide or participate in discovery, a court may enter an order dismissing the action or
proceeding in whole or in part or enter an order rendering a default judgment against the
disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(v) & (vi); see Fed. R. Civ. P. 37(d)(1)(A)(ii) &
(3) (stating that, on a motion, a court may order sanctions if a party, after being properly served
with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its
answers, objections, or written response, with such sanctions to include any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi)). “Instead of or in addition to dismissal or default, a court must order
the disobedient party, its attorney, or both to pay the reasonable expenses, including attorney’s
fees, caused by such failure, unless the failure was substantially justified or circumstances exist
that would make an award of expenses unjust.” Rodrigues Lorador v. Vazquez, Case No. 8:14cv-433-T-23AEP, 2015 WL 12818831, at *2 (M.D. Fla. Apr. 10, 2015), report and
recommendation adopted, 2016 WL 7115976 (Jan. 14, 2016) (citing Fed. R. Civ. P.
37(b)(2)(C)).
Moreover, “once a pro se [ ] litigant is in court, he is subject to the relevant law and rules
of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837
(11th Cir. 1989). Rule 37(d) states: “[I]f a party . . . fails, after being served with proper notice,
to appear for that person’s deposition,” the court “where the action is pending may, on motion,
order sanctions.” Fed. R. Civ. P. 37(d). Rule 37 permits the Court to “dismiss the action or
proceeding or any part thereof” to remedy a Rule 37(d) violation. Fed. R. Civ. P. 37(d)(3) & (b)
(2)(A).

Involuntary dismissal, however, is not a step which a court should take absent

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compelling circumstances. “As the Eleventh Circuit Court of Appeals has held, dismissal under
Rule 37 ‘is an extreme remedy and should not be imposed if lesser sanctions will suffice.’”
Cohran v. McPhearson, No. CV213-033, 2014 WL 317067, at *1 (S.D. Ga. Jan. 28, 2014)
(quoting Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir. 1988)). In determining whether lesser
sanctions will suffice, the presence or absence of willfulness is a relevant consideration. Id.
Plaintiff bears the burden of justifying his conduct, and he must suffer the consequences
of his actions or inaction.

Given Plaintiff’s complete failure to engage in discovery, to

participate in his deposition, or to offer any reasonable explanation for his behavior, dismissal of
his action is an appropriate sanction under Rule 37. Navarro, 856 F.2d at 141–42 (several acts of
neglect and indifference, including failure to appear for deposition, justified dismissal of
plaintiff’s action); Hashemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir. 1984)
(dismissal was an appropriate sanction for plaintiff’s failure to appear at deposition or offer
adequate explanation for his non-appearance); Bonaventure v. Butler, 593 F.2d 625, 626 (5th
Cir. 1979) (plaintiff’s repeated failure to appear for deposition warranted dismissal of his suit
with prejudice).
In this case, the Court has provided Plaintiff considerable leeway, especially considering
his status as an incarcerated, pro se litigant. For instance, the Court extended the discovery
period by one month after Plaintiff moved the Court and asserted that the fellow inmate who had
been assisting him had been transferred to another prison and that Plaintiff had contacted an
attorney to assist him with his case. (Doc. 30.) However, Defendants filed a Motion to Compel
and stated Plaintiff had not responded to their discovery requests or attempts to have Plaintiff
comply with their requests prior to seeking judicial intervention. In granting Defendants’ Motion
to Compel, the Court reminded Plaintiff that he was informed at the commencement of the case

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that, “‘[i]t is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendants.’” (Doc. 35, p. 4 (citing Doc. 11, p. 15).) The Court noted Plaintiff failed to do what
was required of him by the Federal Rules of Civil Procedure, this Court’s Local Rules, and the
Orders of this Court. In fact, Plaintiff even failed to respond to Defendants’ Motion to Compel.
(Id.)
By this same Order, the Court imposed costs against Plaintiff in the amount of $202.18
based on his failure to participate in his properly-noticed deposition. The Court recounted that
Plaintiff had informed Defendants’ counsel, on the morning counsel appeared at FCI Jesup to
depose Plaintiff with a court reporter, that Plaintiff had retained an attorney, who advised him
not to answer any of Defendants’ questions. (Id. at p. 5.) When Defendants’ counsel was able to
contact this attorney, she said that, although Plaintiff had contacted her, she was not representing
Plaintiff and had no intention of doing so. (Id. at p. 6.) The Court noted Plaintiff was given the
opportunity to be heard on the matter and failed to respond to Defendants’ Motion. The Court
reminded Plaintiff that, “‘[u]pon no less than five (5) days’ notice of the scheduled deposition
date, the Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath
or solemn affirmation, any question which seeks information relevant to the subject matter of the
pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.’” (Id. at p. 5 (quoting Doc. 11, p. 15).) Further, the Court
warned Plaintiff that, if he did not provide responses to Defendants’ counsel’s discovery requests
within ten days of the August 12, 2016, Order, his failure to do so would result in the dismissal
of his cause of action as a sanction. (Id. at p. 2.)

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Despite having been advised on more than one occasion of his obligations to participate
in discovery—whether responding to Defendants’ written requests or participating in the
properly-notice deposition—Plaintiff still has not participated in discovery, as required under the
relevant Rules and the Court’s Orders. Additionally, and as Defendants note in their Motion to
Dismiss, Plaintiff: 1) violated Federal Rules 33, 34, and 36 by not responding to discovery
requests within thirty days; 2) violated Federal Rule 30 and two of this Court’s Orders when he
did not participate in his deposition; 3) did not comply with the Court’s August 12, 2016, Order
directing him to serve discovery responses within ten days of that Order or face dismissal of his
cause of action; and 4) has not tendered payment of the monetary sanction this Court imposed in
its August 12, 2016, Order. (Doc. 39, p. 3.)
Plaintiff acknowledges that he has not complied with discovery requests, yet contends he
has not been willful or recalcitrant with his failure. (Doc. 42, p. 2.) Plaintiff then tries to justify
his non-compliance by reiterating the same reasons this Court has found dubious on previous
occasions, such as his limited formal education, his lack of legal training, the transfer of the
inmate who had been helping him with this litigation, the inability to retain an attorney, and his
loss of vision. (Id. at pp. 2–3.) Plaintiff overlooks the fact that this Court has already entertained
these excuses and, after having previously provided him relief, either looked at these excuses
cautiously or rejected these excuses as illegitimate. (Doc. 35, pp. 6–7; Doc. 43.)
Plaintiff’s course of conduct has established his unwillingness to participate in these
proceedings. Plaintiff has been warned on several occasions that his failure to act in accordance
with applicable Rules and the Orders of this Court would result in the dismissal of his cause of
action. Rather than heeding those warnings and acting in conformity therewith, Plaintiff has
chosen to ignore his obligations. This Court’s warnings, coupled with Plaintiff’s failure to

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comply, must result in the dismissal of his cause of action as an appropriate sanction. See
Nelson v. United States, 2017 WL 293194 (S.D. Ind. Jan. 23, 2017) (dismissing a pro se
inmate’s cause of action, in accordance with Rule 41(b) and Seventh Circuit Court of Appeals’
precedent that, after consideration of certain factors, “a court may dismiss a suit [when] the
plaintiff has willfully refused to comply with discovery orders and the plaintiff has been warned
that noncompliance may lead to dismissal.”) (citation omitted). Additionally, the Court has
already imposed sanctions upon Plaintiff based on his failure to comply with the Federal Rules
of Civil Procedure and this Court’s Orders, and these sanctions seem to have had no impact upon
Plaintiff. See Navarro, 856 F.2d at 142.
Thus, I RECOMMEND the Court GRANT Defendants’ Motion to Dismiss, DISMISS
Plaintiff’s Complaint, (doc. 1), without prejudice for failure to prosecute, for failure to follow
this Court’s Orders, and as a discovery sanction, DISMISS as moot Defendants’ Motion for
Summary Judgment, and DIRECT the Clerk of Court to CLOSE this case.

The Court

DISMISSES as moot Plaintiff’s Motion for Order to Require Defendants to provide him with
Copies of Laws.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the
Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not
take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith.

28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective

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standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or,
stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith,
if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s failure to follow this Court’s directives and
failure to prosecute, there are no non-frivolous issues to raise on appeal, and an appeal would not
be taken in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on
appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court GRANT Defendants’ Motion
to Dismiss, (doc. 39), DISMISS without prejudice Plaintiff’s Complaint, and DIRECT the
Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case. I further
RECOMMEND the Court DISMISS as moot Defendant’s pending Motion for Summary
Judgment and DENY Plaintiff leave to appeal in forma pauperis. The Court DISMISSES as
moot Plaintiff’s Motion for Order to Require Defendants to provide him with Copies of Laws.
(Doc. 52.)
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 10th day of February,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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