Harris v. Deal et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
MELVIN HARRIS, a/k/a
NATHAN DEAL, Governor;
HOMER BRYSON, Commissioner;
PHILLIP HALL, Warden;
and FRED GAMMAGE, Warden of Security,
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)).
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
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.
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,
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