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.
How later courts described this case
- 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.
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID DEWAYNE OLIVER, SR., )
#305 189, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:20-CV-59-MHT
) [WO]
KAY IVEY, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff filed this pro se 42 U.S.C. § 1983 action on January 24, 2020. On February 12,
2020, 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 also directed Plaintiff to “immediately inform the court and Defendants or Defendants’ counsel
of record of any change in his address.” Doc. 4 at 2, ¶6. The order also advised 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. at 2–3.
On February 18, 2020, Plaintiff’s copies of the February 12, 2020, orders were returned to
the court marked as undeliverable because Plaintiff is no longer housed at the last service address
he provided.1 Accordingly, the court entered an order on February 19, 2020, requiring that by
March 4, 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. 7. This order
specifically advised Plaintiff this case could not proceed if his whereabouts remained unknown
1 The last address provided by Plaintiff is the Easterling Correctional Facility in Clio, Alabama.
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 February 19, 2020, order was returned to the court March 2, 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 order of the court. Finally, under the circumstances of this case, 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 20, 2020, Plaintiff 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 Plaintiff 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 6th day of March 2020.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE