Wood v. Smith et al

Filing 16

REPORT AND RECOMMENDATIONS that this case be Dismissed w/o prejudice and that this case be Closed - re 1 Complaint filed by Ronald Lamar Wood Objections to R&R due by 4/10/2009. Signed by Magistrate Judge W. Leon Barfield on 3/24/09. (cmr)

ORIGINAL
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION RONALD LAMAR WOOD, Plaintiff, V. HUGH SMITH, Warden, et a!., Defendants. CV 308-103

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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff commenced the above-captioned prose case pursuant to 42 U.S.C. § 1983 and is proceeding in forma pauperis ("IFP"). On February 3, 2009, the Court reviewed Plaintiff's complaint in conformity with the JFP statute. 28 U.S.C. § 1915(e) & 1915A.

Because of pleading deficiencies in Plaintiff's complaint, the Court ordered him to amend his complaint. (Doe. no. 11). 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. (See id. at 3-4). Plaintiff failed to respond to the Court's February 3rd Order. On February 25, 2009, the Court afforded Plaintiff ten (10) additional days to amend his complaint in accordance with the Court's February 3rd Order. (Doe. no. 14). Plaintiff was warned that, if he failed to comply after this ten-day extension, the Court would recommend dismissal of his case for want of prosecution. (id 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.'" Equity Lifestyle Props., Inc. v. Ha. Mowing & Landscape Serv.. Inc., F.3d , No. 07-11342,

2009 WL 250601, at *4 (11th Cir. 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. 14... (citing Fed. R. Civ. P. 41(b)); see also H yler v. Re ynolds 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." Goforthv. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Here, Plaintiffs failure to comply with the Court's Orders, or eveii 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.

'In Banner v. Cit y 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

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. 2 See. e.g., Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Dickson v. Ga. State Bd.of Pardons & Paroles, No. 1 :06-CV- 131 0-JTC, 2007 WL 2904168, at *6 (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 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 thi Georgia. L y of March, 2009, at Augusta,

W. LEO1B4RFIELD/ ) UNITED STATES M(STRATE JUDGE

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