Bennett v. Henline (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

PEDRO GWON BENNETT, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:18-CV-996-WHA

) [WO]

WARDEN HENLINE, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff filed this pro se 42 U.S.C. § 1983 action on November 28, 2018. On November

30, 2018, the court entered an order granting Plaintiff leave to proceed in forma pauperis and an

order of procedure. Docs. 3, 4. The latter order directed Defendants to file an answer and special

report and directed Plaintiff to “immediately inform the court and Defendants or Defendants’

counsel of record of any change in his address.” Doc. 4 at 3, ¶8. The order also informed Plaintiff

that “[f]ailure to provide a correct address to this court within ten (10) days following any change

of address will result in the dismissal of this action.” Id.

On January 15, 2020, Plaintiff’s copy of an order entered January 7, 2020, was returned to

the court marked as undeliverable because Plaintiff is no longer housed at the last service address

he provided. Accordingly, the court entered an order on January 16, 2020, requiring that by January

27, 2020, Plaintiff file with the court a current address and/or show cause why this case should not

be dismissed for his failure to adequately prosecute this action. Doc. 25. This order specifically

advised Plaintiff this case could not proceed if his whereabouts remained unknown and cautioned

him that his failure to comply with its directives would result in the dismissal of this case. Id.

Plaintiff’s copy of the January 16, 2020, order was returned to the court January 27, 2020, marked

as undeliverable. The court therefore concludes this case should be dismissed.

The court has reviewed the file to determine whether a measure less drastic than dismissal

is appropriate. See Abreu-Velez v. Board of Regents of Univ. System of Georgia, 248 F. App’x

116, 117–18 (11th Cir. 2007). After such review, the court finds dismissal of this case is the proper

course of action. First, the administration of this case cannot properly proceed in Plaintiff’s

absence. Next, it appears Plaintiff is no longer interested in the prosecution of this case as he has

failed to comply with the orders of the court. Finally, the court finds that any additional effort by

this court to secure Plaintiff’s compliance would be unavailing and a waste of this court’s scarce

judicial resources. Consequently, the undersigned concludes this case is due to be dismissed. See

Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding that, as a general rule, where a

litigant has been forewarned dismissal for failure to obey a court order is not an abuse of

discretion.). The authority of courts to impose sanctions for failure to prosecute or obey an order

is longstanding and acknowledged by Rule 41(b) of the Federal Rules of Civil Procedure. See

Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962). This authority empowers the courts “to

manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at

630–31; Mingo v. Sugar Cane Growers Co-Op of Fla., 864 F.2d 101, 102 (11th Cir. 1989)

(observing that a “district court possesses the inherent power to police its docket.”). “The sanctions

imposed [upon dilatory litigants] can range from a simple reprimand to an order dismissing the

action with or without prejudice.” Id.

Accordingly, it is the RECOMMENDATION of the Magistrate Judge this case be

DISMISSED without prejudice for Plaintiff’s failures to comply with the orders of the court and

prosecute this action.

It is

ORDERED that on or before March 11, 2020, the parties may file an objection to the

Recommendation. Any objection filed must specifically identify the factual findings and legal

conclusions in the Magistrate Judge’s Recommendation to which a party objects. Frivolous,

conclusive or general objections will not be considered by the District Court. This

Recommendation is not a final order and, therefore, it is not appealable.

Failure to file a written objection to the proposed findings and recommendations in the

Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of

factual findings and legal issues covered in the report and shall “waive the right to challenge on

appeal the district court’s order based on unobjected-to factual and legal conclusions” except upon

grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust

Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d

790, 794 (11th Cir. 1989).

Done, this 26th day of February 2020.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE