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
MYRON HUGHES, )
Reg. No. 18120-043, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:18-CV-206-RAH-SRW
) [WO]
WALTER WOODS, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff filed this pro se Bivens action on March 19, 2018.1 On July 23, 2018, the
court entered an order of procedure. Doc. 23. The order directed Defendants to file an
answer and special report to the amended complaint and also directed Plaintiff to
“immediately inform the court and Defendants or Defendants’ counsel of record of any
change in his address.” Doc. 23 at 4, ¶7. 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.
The court recently ascertained that Plaintiff is no longer at the last address for
service he provided.2 Accordingly, the court entered an order on December 18, 2020,
requiring that by December 29, 2020, Plaintiff file with the court a current address or show
cause why this case should not be dismissed for his failure to prosecute this action. Doc.
1 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
2 The last service address on record for Plaintiff is Bannum Place of Jackson Halfway House in
Jackson, Mississippi.
40. This order specifically advised Plaintiff that 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 has filed no response to
the court’s December 18, 2020 order and the time for doing so has expired. The court
therefore concludes that 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 that
dismissal of this case is the proper course of action. 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 to secure
Plaintiff’s compliance would be unavailing and a waste of this court’s scarce judicial
resources. Consequently, the undersigned concludes that 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.
On or before February 10, 2021, 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 on this the 26th day of January, 2021.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge