Harris v. Deal et al

Filing 22

REPORT AND RECOMMENDATIONS that this case be Dismissed without prejudice under Loc. R. 41.1 want of prosecution and that this civil action be Closed - re 1 Complaint filed by Melvin Harris. Objections to R&R due by 3/30/2017. Signed by Magistrate Judge Brian K. Epps on 3/13/17. (cmr)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION MELVIN HARRIS, a/k/a MELVIN PARKS, Plaintiff, v. NATHAN DEAL, Governor; HOMER BRYSON, Commissioner; PHILLIP HALL, Warden; and FRED GAMMAGE, Warden of Security, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CV 316-086 _________________________________________________________ MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION _________________________________________________________ Plaintiff, an inmate incarcerated at Telfair State Prison in Helena, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983 concerning events at Telfair State Prison. Plaintiff is proceeding pro se and in forma pauperis (“IFP”). Due to various deficiencies in Plaintiff’s complaint, the Court ordered him to amend his complaint on February 6, 2017. (Doc. no. 18.) Plaintiff was given fourteen days to comply, and he was warned that, if he wanted to proceed with his case, he must file an amended complaint. (See id.) In addition, the Court specifically advised Plaintiff that if he failed to amend his complaint as instructed, the Court would presume that he desired to have his case voluntarily dismissed and would recommend dismissal of his case without prejudice. (Id. at 3.) Plaintiff has failed to respond to the Court’s February 6th Order. 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. 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, which operates as an adjudication on the merits unless the Court specifies otherwise. See Id. (citing Fed. R. Civ. P. 41(b)); see also Hyler v. Reynolds Metal Co., 434 F.2d 1064, 1065 (5th Cir. 1970) 1 (“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). Finally, “dismissal without prejudice [is] 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) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). Here, the Court clearly ordered Plaintiff to amend his complaint within fourteen days of its February 6, 2017 Order, and it warned Plaintiff that, in the event he failed to do so, his case would be dismissed without prejudice. (See doc. no. 18, p. 3.) Plaintiff’s failure to 1 In 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 comply 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. Furthermore, because Plaintiff is proceeding IFP, the Court finds that the imposition of monetary sanctions is not a feasible sanction. 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. 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-1310-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 under Loc. R. 41.1 for want of prosecution and that this civil action be CLOSED. SO REPORTED and RECOMMENDED this 13th day of March, 2017, at Augusta, Georgia. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?