JOINER v. MANESS et al
Filing
10
MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/18/2012. IT IS THEREFORE RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RAYMOND DAKIM HARRIS JOINER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAPTAIN MANESS, et al.,
Defendant.
1:11CV68
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
Magistrate Judge sua sponte.
2011.)
undersigned
United
States
(See Docket Entry dated Dec. 19,
The case began when Plaintiff filed a pro se Complaint
pursuant to 42 U.S.C. § 1983.
with
the
the
filing
of
(Docket Entry 2.)
Plaintiff’s
Complaint,
In conjunction
Plaintiff
filed
a
Declaration and Request to Proceed In Forma Pauperis (Docket Entry
1).
Said Request was granted by way of Order of United States
Magistrate Judge Wallace W. Dixon.
(Docket Entry 3 at 2.)
Thereafter, Plaintiff filed a notice of change of address
directing service upon him at a residence (rather than at the jail
where he was housed at the time the case began).
8.)
(See Docket Entry
In light of that Notice, on November 8, 2011, the Court, by
way of the undersigned United States Magistrate Judge, directed
that “Plaintiff . . . must provide an updated in forma pauperis
application, so that the Court can determine if Plaintiff still
qualifies to proceed as a pauper.”
Specifically,
the
Court
ordered
(Docket Entry 9 at 1-2.)
“that
the
Clerk
shall
send
Plaintiff a new application to proceed as a pauper, that Plaintiff
shall file the completed application with the Court on or before
December
7,
2011,
and
that
the
Clerk
shall
refer
the
filed
application to the undersigned Magistrate Judge for a determination
as to whether Plaintiff may continue to proceed as a pauper.” (Id.
at 2.)
That Order specifically warned: “FAILURE BY PLAINTIFF TO
COMPLY WITH THIS ORDER WILL RESULT IN DISMISSAL OF THIS ACTION
WITHOUT FURTHER NOTICE TO PLAINTIFF.”
(Id. (capitalization and
bolding in original).)
Morever, that Order also directed that “the Clerk shall send
plaintiff a summons for each defendant named in the complaint.
Plaintiff must fill out a summons for each defendant, including an
address suitable for service, and then return the summons(es) to
the Clerk.”
(Id. at 2.)
Again, Plaintiff was warned: “Failure to
provide an address wherein service may be made on any defendant
will result in the dismissal of the action as to all such unserved
defendants after 120 days from the filing of the complaint.”
(Id.
(citing Fed. R. Civ. P. 4(m)).)
Despite the Court’s directives and explicit warnings, the
record reflects that Plaintiff has neither completed a renewed
application to proceed as a pauper nor made service of process on
any Defendant as directed by the Court’s previous Order.
(See
Docket Entries dated Nov. 8, 2011, to present.)
“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
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failure to comply with court orders.
Fed. R. Civ. P. 41(b).
In
this case, appellant failed to respond to a specific directive from
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
the court.”
Accordingly,
the
Court
should
dismiss
this
action
based
on
Plaintiff’s failure to comply with the Court’s Orders directing him
to complete a renewed application to proceed as a pauper and to
complete proper summonses within 120 days, see Fed. R. Civ. P.
4(m).
In making that recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”
Ballard, 882 F.2d at 95.
Generally, before dismissing
an action based on a party’s failure to comply with an order, a
court should consider:
of
the
plaintiff;
defendant;
(iii)
“(i) the degree of personal responsibility
(ii)
the
the
amount
existence
of
of
a
prejudice
history
of
caused
the
deliberately
proceeding in a dilatory fashion, and (iv) the existence of a
sanction
less
drastic
than
dismissal.”
Id.
In
this
case,
Plaintiff bears sole responsibility for the instant non-compliance,
the
delay
caused
by
Plaintiff’s
non-compliance
prejudices
Defendants’ right to adjudication when memories remain fresh,
Plaintiff has had multiple opportunities to submit a properlycompleted application to proceed as a pauper and summonses forms
-3-
and has a history of improper litigation conduct in other cases,1
and no other sanction appears feasible or sufficient.
Moreover, the Court previously warned Plaintiff both that
“FAILURE BY PLAINTIFF TO COMPLY WITH THIS ORDER WILL RESULT IN
DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE TO PLAINTIFF”
(Docket Entry 9 at 2) and that “[f]ailure to provide an address
wherein service may be made on any defendant will result in the
dismissal of the action as to all such unserved defendants after
120 days from the filing of the complaint” (id.). In assessing the
propriety of dismissal as a sanction, an “explicit warning that a
recommendation of dismissal would result from failure to obey [an]
order is a critical fact . . . .”
Ballard, 882 F.2d at 95.
Indeed, “[i]n view of the warning, the [Court] ha[s] little
alternative to dismissal.
of]
plac[ing]
the
invit[ing] abuse.”
Any other course would have [the effect
credibility
of
the
[C]ourt
in
doubt
and
Id.
1
It appears Plaintiff has filed eight other cases with this
Court alone.
See Joiner v. Barnes, 1:09-cv-00888; Joiner v.
Barnes, et al., 1:09-cv-00926; Joiner v. Knott, et al., 1:09-cv00927; Joiner v. Officer K. Watkins, 1:09-cv-00945; Joiner v.
Porcher, et al., 1:10-cv-00823; Joiner v. Mr. Jackson, et al.,
1:11-cv-00070; Joiner v. Captain Maness, et al., 1:11-cv-00071;
Joiner v. Captain Maness, et al., 1:11-cv-00072.
Two of these
actions were dismissed for failure to comply with Fed. R. Civ. P.
4(m).
See Joiner v. Barnes, et al., 1:09-cv-00926; Joiner v.
Knott, et al., 1:09-cv-00927.
Two were dismissed “for being
frivolous or malicious or for failing to state a claim upon which
relief may be granted.” Joiner v. Captain Maness, et al., 1:11-cv00071, Docket Entry 12; Joiner v. Captain Maness, et al., 1:11-cv00072, Docket Entry 13.
-4-
IT IS THEREFORE RECOMMENDED that this action be DISMISSED
WITHOUT PREJUDICE.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 18, 2012
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