Porter v. Shumake et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS WITHOUT PREJUDICE Plaintiff claims against Defendant Cambell and Defendant Dottson. Additionally, I RECOMMEND the Court DISMISS AS MOOT Defendant Cambell's re 43 MOTI ON to Dismiss, 1 Complaint. 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 (Objections to R&R due by 2/8/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/25/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-113
RONNIE SHUMAKE; C.O. II DOTTSON;
C.O. II SAPP; C.O. II CAMBELL,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Plaintiff’s failure to comply with the Court’s
Order of December 30, 2016, (doc. 45), and his failure to prosecute this action.
following reasons, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE
Plaintiff’s claims against Defendant Cambell for failure to follow the Court’s directive and
failure to prosecute, and DISMISS AS MOOT Defendant Cambell’s Motion to Dismiss.
(Doc. 43.) I also RECOMMEND the Court DISMISS WITHOUT PREJUDICE Plaintiff’s
claims against Defendant Dottson. The Court DISMISSES AS MOOT Defendant Cambell’s
Motion to Stay Proceedings, (doc. 47).
On September 21, 2015, Plaintiff, proceeding pro se, filed a Complaint contesting an
alleged use of force during his incarceration at Georgia State Prison in Reidsville, Georgia.
(Doc. 1.) After the requisite frivolity review of Plaintiff’s Complaint, I concluded that Plaintiff
set forth viable Eighth Amendment claims against Defendants in their individual capacities.
(Doc. 9.) In that Order, the Court directed the United States Marshal to serve Defendants
Shumake, CO II Dottson, CO II Sapp, and CO II Cambell with a copy of Plaintiff’s Complaint
and the January 13, 2016, Report and Recommendation. (Id. at pp. 1, 8.) The Court also
instructed Plaintiff that if he “does not press his case forward, the Court may dismiss it for want
of prosecution.” (Id. at p. 11.) The Court specifically informed Plaintiff of his obligation to
respond to a motion to dismiss within 14 days of service of such a motion. (Id. at p. 12.) The
Court explained that, should Plaintiff fail to respond to such a motion, the Court will assume that
he does not oppose the Motion. (Id.) Defendants Sapp and Shumake subsequently filed a
Motion to Dismiss, (doc. 13), which Plaintiff responded to, (docs. 19, 23). The Court granted in
part and denied in part the Motion to Dismiss, (doc. 30).
On November 9, 2016, service of process forms for Defendants Dottson and Cambell
were returned unexecuted. (Docs. 36, 37.) On November 17, 2016, this Court directed the
United States Marshal to “make reasonable efforts to locate and personally serve Defendants
Dottson and Cambell.” (Doc. 39, p. 1.) Shortly thereafter, service was returned executed by
Defendant Cambell and unexecuted as to Defendant Dottson. The United States Marshal noted
on the return receipt that, “Dottson is currently stationed in Germany as a civilian Dept. of
Defense employee.” (Doc. 41, p. 1.) On December 23, 2016, Defendant Cambell moved to
dismiss, (doc. 43), and the Court ordered Plaintiff to respond. (Doc. 46.) The Court further
instructed Plaintiff that a failure to timely respond will result in the Court “determin[ing] that
Plaintiff does not oppose the Motion.” (Id. at p. 2.)
Dismissal of Claims Against Defendant Cambell
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to respond to Defendant Cambell’s Motion to Dismiss. A district
court may dismiss a plaintiff’s claims for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b), (“Rule 41(b)”), and the court’s inherent authority to manage its docket. Link v.
Wabash R.R. Co., 370 U.S. 626 (1962); 1 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
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
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
repeatedly advised Plaintiff that her failure to respond to the Motion to Dismiss would result in dismissal
of this action.
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 and claims with caution,
dismissal of Plaintiff’s claims against Defendant Cambell 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
Defendant Cambell’s Motion to Dismiss and the consequences for failing to respond, Plaintiff
has not filed any opposition to Defendant Cambell’s Motion.
Furthermore, Plaintiff is
particularly aware of the Court’s procedures regarding motions to dismiss.
responded to the Motion to Dismiss filed by Defendants Shumake and Sapp after filing several
extensions of time to respond. Thus, Plaintiff is aware of the importance of responding to a
Motion to Dismiss and the procedures for acquiring an extension of time should it be necessary.
Here, Plaintiff neither responded to Defendant Cambell’s Motion nor filed for an extension of
time to do so. Accordingly, it is clear that Plaintiff has ignored his obligations to prosecute this
case and to follow this Court’s directives or indicates that he does not contest Defendant
Cambell’s Motion to Dismiss.
Therefore, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE
Plaintiff’s claims as to Defendant Cambell.
Dismissal of Claims Against Defendant Dottson
District courts possess broad discretion to dismiss a plaintiff’s complaint for failure to
effect service or to quash service of process. See Marshall v. Warwick, 155 F.3d 1027, 1032–33
(8th Cir. 1998); Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). Additionally, “if a
defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the
action without prejudice against that defendant or order that service be made within a specified
time.” Fed. R. Civ. P. 4(m).
Because Plaintiff was proceeding in forma pauperis in this case, the United States
Marshal assisted with effecting proper service.
After service was returned unexecuted on
November 9, 2016, the Court extended the time period for service to December 9, 2016, and
ordered the Georgia Attorney General’s Office and the Georgia Department of Corrections to
assist the United States Marshal with information regarding Defendants Cambell and Dottson’s
whereabouts. (Doc. 39, pp. 4–5.) The Court also advised Plaintiff that this “assistance is an
extraordinary remedy” and that “Plaintiff . . . ultimately has the responsibility for serving
Defendants.” (Id. at p. 5.) Furthermore, the Court warned Plaintiff that “if these efforts are
unsuccessful, the Court will dismiss his claims against these Defendants.” (Id.) Service upon
Defendant Dottson has been unsuccessful despite the extraordinary assistance from the United
States Marshal and the extended time period for service. It appears that Defendant Dottson no
longer resides within the United States. Plaintiff has not made any independent effort to assist
the Court’s efforts in having Defendant Dottson served or otherwise fulfill his obligation of
service in this case. Thus, dismissal is warranted. See Penton v. Nunez, No. 2:11-CV-0518
GEB KJN, 2014 WL 4244013, at *2 (E.D. Cal. Aug. 26, 2014) (dismissing case after inability to
locate and serve defendant at address provided by deputy attorney general); Williams v. Hodges,
No. CIV.A H-08-2082, 2010 WL 518776, at *5 (S.D. Tex. Jan. 31, 2010) (dismissing case
“because the United States Marshal has been unable to complete service of process based on the
information provided by the plaintiff and the State Attorney General’s Office.”)
Accordingly, I also RECOMMEND that the Court DISMISS WITHOUT
PREJUDICE Plaintiff’s claims against Defendant Dottson based on Plaintiff’s inability to effect
service on this Defendant.
For the above-stated reasons, I RECOMMEND the Court DISMISS WITHOUT
PREJUDICE Plaintiff’s claims against Defendant Cambell and Defendant Dottson.
Additionally, I RECOMMEND the Court DISMISS AS MOOT Defendant Cambell’s Motion
to Dismiss, (doc. 43). The Court DISMISSES AS MOOT Defendant Cambell’s Motion to Stay
Proceedings, (doc. 47).
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 to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of January,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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