Milner v. Corizon Medical Corp. et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the amended complaint, and all of plaintiffs causes of action against all of the defendants, are hereby DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTH ER ORDERED that plaintiffs motion to appoint counsel (Docket No. 6 ) is DENIED as moot. IT IS HEREBY CERTIFIED than an appeal from this dismissal would not be taken in good faith. Signed by District Judge Ronnie L. White on November 21, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LOWELL MILNER,
Plaintiff,

CORIZON MEDICAL CORP., et al.,
Defendants.

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No. 4:16CV1445 RLW

MEMORANDUM AND ORDER
This matter is before the Court upon review of the file. On September 12, 2016, plaintiff
filed his original complaint in this Court, apparently attempting to allege that he was denied
health care. Named as defendants were Corizon, the Missouri Department of Corrections, and
three individual physicians. In the complaint, plaintiff stated that he had several severe health
conditions, referred to the defendants collectively, and concluded that they had denied him health
care. Plaintiff did not specify the capacity in which he was suing the defendants . On October 3,
2016, the Court reviewed the complaint, concluded that plaintiff had failed to state a claim upon
which relief could be granted, and ordered plaintiff to file an amended complaint. The Court
provided plaintiff with specific instructions regarding how to properly compose the amended
complaint, including specifically instructing him to specify the capacity in which he was suing
the defendants. The Court also ordered plaintiff to submit an initial partial filing fee of $3 .83,
which to date remains unpaid.
On October 17, 2016, plaintiff submitted a motion with an amended complaint attached.
The amended complaint was detached and docketed on October 24, 2016. Also on that date, the
Court reviewed the amended complaint and determined that it contained the same defects as the

first: it failed to state whether plaintiff intended to sue the defendants in their individual
capacities, their official capacities, or both; it failed to state with any specificity what each
defendant did to violate plaintiffs constitutional rights; and contained only bare assertions
without factual enhancement.
The Court ordered plaintiff to file a second amended complaint within 21 days, giving
him specific instructions regarding how to do so. Plaintiff was also very clearly cautioned that if
he failed to timely comply with the Court's order, his case would be dismissed without prejudice.
Plaintiffs response to the Court was due November 14, 2016.

To date, plaintiff has filed

nothing.
The situation presently before the Court is one in which plaintiff has refused to comply
with two Court orders: the October 3, 2016 Order to the extent it directed him to submit an
initial partial filing fee by November 2, 2016, and the October 24, 2016 Order directing him to
submit a second amended complaint no later than November 14, 2016. Also notable is the fact
that plaintiff failed to follow any of the Court's instructions included in the October 3, 2016
Order regarding how to properly compose the amended complaint. All of the foregoing leads the
Court to conclude that plaintiffs failure to comply with this Court's orders was intentional rather
than accidental, and that plaintiff will continue to fail to prosecute his case. It is also apparent
that plaintiff would most likely continue to refuse to comply with future Court orders, either by
not responding to them at all or by failing to follow the instructions therein. The Court therefore
determines that dismissal is appropriate pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure, due to plaintiffs failure to comply with court orders and to prosecute his case. See
Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (Rule 41 dismissal is appropriate in cases of

willful disobedience of a court order or persistent failure to prosecute a complaint); see also

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Rodgers v. Curators of Univ. Of Mo., 135 F.3d 1216, 1219-20 (8th Cir. 1998) (upholding the
district court' s Rule 41 dismissal after the plaintiff refused to comply with court orders, finding
the district court did not need to find that the plaintiff acted in bad faith, only that the failure to
comply was intentional as opposed to accidental or involuntary); Brown v. Frey, 806 F.2d 801,
803-04 (8th Cir. 1986) (holding that a district court has the power to dismiss an action for the
plaintiffs failure to comply with any court order).
According! y,

IT IS HEREBY ORDERED that the amended complaint, and all of plaintiffs causes of
action against all of the defendants, are hereby DISMISSED without prejudice. A separate order
of dismissal will be entered herewith.

IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket No. 6)
is DENIED as moot.

IT IS HEREBY CERTIFIED than an appeal from this dismissal would not be taken in
good faith.
Dated this 21st day ofNovember, 2016.

lc?~J;46
UNITED STATES DISTRICT JUDGE

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