Foy v. All medical and staff Coffee Correctional Facility
ORDER re: Plaintiff's 60 Notice of Voluntary Dismissal. Pursuant to Federal Rules of Civil Procedure 41(a)(1)(A)(i) and 41(b), the Court APPROVES Plaintiff's Notice, DISMISSES Plaintiff's Complaint without prejudice, and DISMISSES as moot all pending Motions in this case. The Court DIRECTS the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 2/23/2017. (csr)
?imteb ^tatess IBtsitrict Court
:lfor tl^e ^ottt][iem Biotnct of (fleorgia
RICHARD WILLIAM FOY,
CIVIL ACTION NO.: 5:15-cv-98
NURSE CASTILLO; MELODY MCLOUD;
DR. MOOR; DR. AUSTIN; JOHN HUICK;
MRS. WRIGHT; and MRS. HANDS,
Presently before the Court is Plaintiff's Notice of Voluntary
Dkt. No. 60.
Pursuant to Federal Rules of Civil Procedure
41(a)(1)(A)(i) and 41(b), the Court APPROVES Plaintiff's Notice,
DISMISSES Plaintiff's Complaint without prejudice, and DISMISSES as
moot all pending Motions in this case.
The Court DIRECTS the Clerk of
Court to enter the appropriate judgment of dismissal and to CLOSE this
Plaintiff, who is currently housed at Coffee Correctional
Facility in Nicholls, Georgia, filed this cause of action pursuant to
42 U.S.C. § 1983 to contest certain conditions of his confinement.
Dkt. No. 1.
Plaintiff also filed an Amended Complaint.
Dkt. No. 5.
The Court directed Plaintiff to file another Amended Complaint, as
Plaintiff failed to identify a person or persons who could be held
liable for the alleged constitutional violations.
Dkt. No. 15.
Plaintiff responded to this Court's Order by mailing three letters.
In his Complaint, as amended.
Plaintiff asserted that Nurse
Castillo denied him treatment for a litany of ailments, including pain
in his chest, back,
feet, and right hand, as well as
cellulitis, diabetes, high blood pressure, and a hernia.
5; Dkt. No. 18.
Dkt. No. 1,
Plaintiff then filed a Motion to file a Second
Amended Complaint on July 29, 2016.
Dkt. No. 21.
The Court granted
Plaintiff's Motion to file a Second Amended Complaint on September 12,
By this same Order,
the Court directed service of Plaintiff's
Complaint, as amended, upon Defendants McLoud,
John Huick, Mrs. Wright, and Mrs. Hands.
Dr. Moor, Dr. Austin,
Dkt. Nos. 25, 27.
Defendants except for Dr. Moor and Dr. Austin filed an Answer on
Thereafter, Plaintiff filed several pleadings, including a Motion
to Compel Discovery and a Request for "Dead Docket Case", dkt. nos.
In the Order addressing Plaintiff's Request for "Dead Docket
Case" and denying his Motion to Compel Discovery, the Court stated
that it appeared that Plaintiff wished to dismiss his case voluntarily
at this time and that Plaintiff should advise the Court whether he
wanted to dismiss his case.
Dkt. No. 56, p. 2.
to this Order and stated he is unsure how to proceed with his case at
this time because he has been unable to obtain discovery.
Additionally, Plaintiff filed a Notice on January 9, 2017, in
which he stated Defendant Castillo's attorney requested certain
admissions from Plaintiff, and Plaintiff could not answer those
admissions until he
knew whether certain s t a f f members were
responsible for the alleged violations of his constitutional rights.
Plaintiff also stated he wants his case on the "dead docket" until he
was able to resolve these issues.
Plaintiff filed a
"Motion for Default", also on January 9, 2017, and requested that the
dead docket motion he filed on October 28, 2016, not be "lifted".
Dkt. No. 59.
Finally, Plaintiff filed "Responce [sic] on Stipulated
Dismissal with Prejudice Reads" on January 9, 2017.
Dkt. No. 60.
avers he is proceeding pursuant to Rule 41(a)(1) and "dismisses this
action without prejudice."
Defendants responded to Plaintiff's filings.
Defendants do not
oppose the dismissal of Plaintiff's claims, without prejudice, but do
oppose Plaintiff's desire to have this case dead docketed.^
assert Plaintiff's responses to this Court's Orders do "not evidence a
willingness to proceed," and Defendants "renew their request that the
case be closed by dismissal without prejudice."
61, p. 1.
"[T]he plaintiff may dismiss an action without a court order by
. a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment[.]"
In fact. Defendants' counsel prepared a proposed stipulation of
dismissal in response to Plaintiff's Motion to Dead Docket, as i t
appeared to counsel that Plaintiff's Motion was a motion to dismiss
without prejudice so Plaintiff could "organize his affairs." Dkt. No.
49, p. 1.
A dismissal under this Rule is without prejudice,
unless otherwise indicated.
Fed. R. Civ.
A cause of
action can also be dismissed upon a defendant's motion ^Mi]f the
plaintiff fails to prosecute or to comply with these rules or a court
Fed. R. Civ. P.
A dismissal under this Rule
^^operates as an adjudication on the merits."
Plaintiff's recent pleadings are not exemplars of clarity.
Nonetheless, as laid out above. Plaintiff has now expressed his desire
to dismiss his cause of action on more than one occasion.
Consequently, the Court GRANTS Plaintiff's requests and DISMISSES his
action, without prejudice.
Additionally, Plaintiff has not engaged in discovery, as required
by this Court's Orders, the Local Rules of this Court, and the Federal
Rules of Civil Procedure.
Further, despite the Court having provided
Plaintiff several opportunities to clarify his claims and prosecute
he s t i l l has not moved forward with this case.
Plaintiff's failure to do so may be due to an inability or an
unwillingness on his part, but, whatever the reason, the Court cannot
ignore Plaintiff's failure to engage in the litigation process.^
Consequently, even if Plaintiff had not requested dismissal, the Court
alternatively DISMISSES this action WITHOUT PREJUDICE for Plaintiff's
failure to prosecute and failure to follow this Court's Orders.^
The Court has repeatedly advised Plaintiff of his obligation to
prosecute his claims.
See, e.g., Dkt. No. 19, p. 12
the responsibility for pursuing this case.").
^ A district court may dismiss a plaintiff's claims for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b)
Plaintiff may re-file his cause of action on a later date, but he
is advised he must comply with any and all applicable Rules and this
Pursuant to Federal Rules of Civil Procedure 41(a)(1)(A)(i)
the Court APPROVES Plaintiff's Notice, DISMISSES Plaintiff's
Complaint without prejudice, and DISMISSES as moot all pending Motions
The Court DIRECTS the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOS^ this case.
LISA GOD^Y WOOD, CHIEF JUDGE
untIted ^ates district court
SOUTHERN DISTRICT OF GEORGIA
41(b)") and the court's inherent authority to manage its docket.
V. Wabash R.R. Co., 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
Kilqo 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. Tallahassee Police Dep't, 205 F. App'x 802, 802
(11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th
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