Simmons v. Williams et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' 103 MOTION to Dismiss, and DISMISS without prejudice Plaintiff's claims for his failure to comply with his discovery obligations, failure to follow the C ourt's directives, and failure to prosecute. It is further RECOMMENDED that the Court DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis. The Court ORDERS a ny 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 Recommendation is entered. (Objections to R&R due by 3/23/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/9/2018. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:14-cv-111
WARDEN STANLEY WILLIAMS; JAMES
DEAL; WAYNE JOHNSON; ERIC
SMOKES; JOHNNY DAVIS; RONNIE
BYNUM; CURTIS WHITFIELD; ANTONIO
ABALOS; JOHNATHAN SANTIAGO;
ZECHARIAH JONES; PAUL GRIFFIN; and
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Plaintiff’s failure to comply with the Court’s
Orders, (docs. 101, 104), and his failure to prosecute this action. For the following reasons, I
RECOMMEND that the Court GRANT Defendants’ Motion to Dismiss, (doc. 103), and
DISMISS without prejudice Plaintiff’s claims for his failure to comply with his discovery
obligations, failure to follow the Court’s directives, and failure to prosecute.
RECOMMEND that the Court DIRECT the Clerk of Court to enter an appropriate judgment of
dismissal and to CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis.
On October 15, 2014, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while incarcerated at Smith State Prison in Glennville, Georgia.
(Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis, which the
Court granted on October 16, 2014. (Docs. 2, 4.)
After the requisite frivolity review of Plaintiff’s Complaint, I concluded that Plaintiff set
forth viable First Amendment, Fourth Amendment, Eighth Amendment, Fourteenth Amendment,
and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et
seq., claims against Defendants. (Doc. 9.) I ordered service of Plaintiff’s Complaint and also
provided instructions to Plaintiff regarding the prosecution of this action. (Id. at pp. 20–25.) The
Court instructed Plaintiff that if he “does not press his case forward, the Court may dismiss it for
want of prosecution.” (Id. at pp. 24–25.) The Court specifically informed Plaintiff of his
obligation to respond to a motion to dismiss within fourteen (14) days of service of such a
motion. (Id.) The Court further explained that, should Plaintiff fail to respond to such a motion,
the Court will assume that he does not oppose the Motion. (Id.) Additionally, the Court advised
Plaintiff that failure to respond could result in his case being dismissed for lack of prosecution.
(Id.) Finally, the Court warned Plaintiff that failure to fully cooperate in discovery “may subject
Plaintiff to severe sanctions, including dismissal of this case.” (Id. (emphasis in original).)
Defendants filed their first Motion to Dismiss on October 9, 2015, to which Plaintiff filed
a Response in opposition.
(Docs. 41, 54.)
The Court issued a stay for the pendency of
Defendants’ Motion to Dismiss. (Doc. 44.) Following a series of motions and filings by
Plaintiff, the Court granted in part and denied in part Defendants’ Motion to Dismiss on August
9, 2017. (Doc. 93.) After Defendants filed their Answer, the Court lifted the stay and issued a
scheduling order with a discovery deadline of January 18, 2018. (Docs. 96, 98, 99.)
On January 11, 2018, Defendants filed a Motion to Dismiss, or in the Alternative, Motion
to Compel and to Extend the Discovery Period. (Doc. 100.) Defendant’s filed this Motion
because Plaintiff failed to appear for his noticed deposition and failed to communicate
whatsoever with Defendants about this scheduled deposition. (Doc. 100, p. 2; Doc. 100-2.) The
Court denied in part and granted in part Defendants’ Motion, ordering Plaintiff to appear for his
next scheduled deposition and granting an extension of discovery. (Doc. 101.) In its Order, the
Court advised that the Federal Rules of Civil Procedure authorize dismissal as a sanction for
disobeying discovery orders and forewarned Plaintiff in no uncertain terms “that his failure to
participate in discovery will warrant the dismissal of this action.” (Id.) Yet again, Plaintiff
failed to appear for his noticed deposition, (doc. 103-2), and Defendants filed another Motion to
Dismiss as a result, (doc. 103).
On February 13, 2018, out of an abundance of caution, the Court deferred ruling on
Defendants’ Motion and ordered Plaintiff to “file any response in opposition to Defendants’
Motion for a dismissal or to inform the Court of his decision not to oppose” within fourteen (14)
days. (Doc. 104.) The Court again alerted Plaintiff that, should he fail to respond to the Motion
to Dismiss, the Court would presume he does not oppose the Motion. (Id.) In addition, the
Court provided Plaintiff with a copy of Federal Rules of Civil Procedure 41 and 12 to ensure that
he had full notice of the requirements of the Rules regarding motions to dismiss. (Id.) Plaintiff,
however, has not filed a response to Defendants’ Motion to Dismiss.
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his discovery obligations, his failure to respond to Defendants’ Motion to
Dismiss, and his failure to prosecute. In light of Plaintiff’s trifecta of error and 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
Dismissal for Failure to Appear At Noticed Deposition
Federal Rule of Civil Procedure 37(d) authorizes district courts to sanction a party who,
after being served with proper notice, fails to appear for his deposition. A court may dismiss an
action as a sanction for the party’s failure to appear for a noticed deposition. Fed. R. Civ. P.
37(d)(3), (b)(2)(A)(v). “[T]he sanction of dismissal is a most extreme remedy and one not to be
imposed if lesser sanctions will do.” Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538,
1538–39 (11th Cir. 1984) (upholding dismissal pursuant to Fed. R. Civ. P. 37(d)). However, the
court “retains the discretion to dismiss a complaint where the party’s conduct amounts to flagrant
disregard and willful disobedience of the court’s discovery orders.”
Id. at 1539 (citation
omitted); see also Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (the plaintiff's
repeated failure to appear for deposition warranted dismissal of his suit with prejudice). 1 In
determining whether lesser sanctions will suffice, the presence or absence of willfulness is a
relevant consideration. 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2291 (2d ed. 1995).
Under Federal Rule of Civil Procedure 41(b), a “district court is authorized, on
defendant’s motion, to dismiss an action for failure to prosecute or to obey a court order or
federal rule,” but a dismissal with prejudice is “a sanction of last resort.” Goforth v. Owens, 766
F.2d 1533, 1535 (11th Cir. 1985). In dismissing a case under Rule 41(b), the Court considers
whether (1) the party has exhibited a clear record of delay or (2) has been willfully contempt, and
whether lesser sanctions would not suffice. Id. (citation omitted). Dismissal pursuant to Rule
All decisions of the former Fifth Circuit issued before October 1, 1981, are binding precedent in the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
41(b) “upon disregard of an order, especially where the litigant has been forewarned, generally is
not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Moreover, where a litigant has failed to comply with discovery rules and related court
orders, dismissal under Rules 37(d) and 41(b) is coextensive. See Kelly v. Old Dominion
Freight Line, Inc., 376 F. App’x 909, 913–15 (11th Cir. 2010) (per curiam) (upholding
magistrate judge’s dismissal under either Rule 37(d) or 41(b) where the party failed to appear at
his noticed deposition and failed to timely respond to other discovery requests after the court
previously denied the defendant’s first sanctions motion and warned the party that dismissal
would be warranted for subsequent discovery violations); Reed v. Fulton Cty. Gov’t, 170 F.
App’x 674, 675–676 (11th Cir. 2006) (affirming dismissal under Rules 37(d) and 41(b) where
the pro se party failed to appear at his deposition and disregarded the court’s order compelling
him to do so).
In this case, Plaintiff’s willful disobedience of the Federal Rules of Civil Procedure
regarding discovery and this Court’s discovery Orders is abundantly clear. As Defendants point
out in their Motion to Dismiss, Plaintiff missed not one, but two noticed depositions, the second
being scheduled approximately five miles from Plaintiff’s address of record. (Doc. 103-1, pp. 2–
3.) Plaintiff failed to communicate with Defendants and shirked his obligation to conduct
discovery in good faith. Even more egregious, Plaintiff disobeyed this Court’s Order compelling
his deposition appearance, (doc. 101), and failed to heed the Court’s ample warnings of dismissal
for his failure to participate in discovery, (id. at pp. 3, 4; doc. 9, pp. 24–25). Plaintiff’s repeated
disregard and absent behavior have wasted precious judicial resources and shown willful
contempt. Given Plaintiff’s total failure to engage in discovery and failure to comply with this
Court’s Orders, a lesser sanction than dismissal will not do.
Accordingly, the Court should GRANT Defendants’ unopposed Motion to Dismiss, (doc.
103), and DISMISS without prejudice Plaintiff’s case.
Dismissal for Failure to Prosecute and Follow this Court’s Orders
A district court may dismiss a plaintiff’s claims for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b), and the court’s inherent authority to manage its docket.
Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 2 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
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
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. Nonetheless, in the case at hand, the Court
advised Plaintiff on multiple occasions that his failure to respond to the Motion to Dismiss would result in
dismissal of this action.
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
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).
Despite the Court advising Plaintiff on multiple occasions of his obligation to respond to
Defendants’ Motion to Dismiss and the consequences for failing to respond, (docs. 9, 45, 104),
Plaintiff has not filed any opposition to Defendants’ current Motion. Indeed, other than twice
updating his address, Plaintiff has not taken any action in this case in over seven months. Thus,
it is clear that Plaintiff has ignored his obligations to prosecute this case and to follow this
Court’s directives. Accordingly, Plaintiff’s failure to follow this Court’s Orders and his failure
to prosecute his case provide independent, additional grounds for the Court to DISMISS
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
taken 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
standard. Busch v. County 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).
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 comply with discovery, 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.
For the above-stated reasons, I RECOMMEND that the Court GRANT Defendants’
Motion to Dismiss, (doc. 103), and DISMISS without prejudice Plaintiff’s claims for his failure
to comply with his discovery obligations, failure to follow the Court’s directives, and failure to
prosecute. I further RECOMMEND that the Court DIRECT the Clerk of Court to enter an
appropriate judgment of dismissal and to CLOSE this case and DENY Plaintiff leave to appeal
in forma pauperis.
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
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 is to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of March,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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