holding that, generally, 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, generally, where a litigant has been forewarned dismissal for failure to obey a court order is not an abuse of discretion
- “When the magistrate provides such notice and a party still fails to object to the findings of fact and those findings are adopted by the district court the party may not challenge them on appeal in the absence of plain error or manifest injustice.”
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GERRARD MONTREZ DEVOLD, )
AIS, #293614, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:20-CV-755-ECM
) (WO)
)
KAY IVEY, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by
Gerrard Montrez Devold, an indigent state inmate currently incarcerated at the Easterling
Correctional Facility. In the instant complaint, Devold challenges the conditions of his
confinement at Easterling due to the COVID-19 pandemic. Doc. 1 at 3. He seeks monetary
damages and release from confinement. Doc. 1 at 4.
The defendants filed a special report supported by relevant evidentiary materials,
including sworn declarations and other documents, in which they address the claims
presented by Devold. See Doc. 16 & Docs. 16-1 thru 18-5. In these documents, the
defendants deny any violation of Devold’s constitutional rights.
Upon review of the defendants’ report and supporting evidentiary materials, the
undersigned entered an order directing Devold to file a response to these documents. Doc.
17. The order advised Devold that his failure to respond to the report would be treated by
the court “as an abandonment of the claims set forth in the complaint and as a failure
to prosecute this action.” Doc. 17 at 1 (emphasis in original). Additionally, the order
“specifically cautioned [Devold] that if he fails to file a response in compliance with
the directives of this order the undersigned will recommend that this case be
dismissed for such failure.” Doc. 17 at 1 (emphasis in original). The time allotted Devold
to file a response in compliance with this order expired on February 4, 2021. Doc. 17 at 1.
As of the present date Devold has failed to file a response in opposition to the defendants’
special report as ordered by the court. In light of this failure, the court finds that the instant
case should be dismissed.
The undersigned has reviewed the file to determine whether a less drastic measure
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 this review, it is clear that
dismissal of this case is the proper course of action. Specifically, Devold is an indigent
inmate. Thus, the imposition of monetary or other punitive sanctions against him would
be ineffectual. Additionally, his inaction in the face of the defendants’ report and this
court’s order suggests a loss of interest in the continued prosecution of this case. Finally,
it appears that any additional effort by this court to secure Devold’s compliance would be
unavailing and a waste of this court’s scarce judicial resources. Consequently, the court
concludes that the abandonment of this case by Devold and his failure to comply with an
order of this court warrant dismissal. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (holding that, generally, 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) (holding 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.
For the above stated reasons, it is the RECOMMENDATION of the Magistrate
Judge that this case be dismissed without prejudice.
On or before March 18, 2021 the parties may file objections to the
Recommendation. A party must specifically identify the factual findings and legal
conclusions in the Recommendation to which the objection is made. Frivolous, conclusive,
or general objections to the Recommendation will not be considered.
Failure to file written objections to the proposed findings and legal conclusions set
forth in the Recommendations of the Magistrate Judge shall bar a party from a de novo
determination by the District Court of these factual findings and legal conclusions 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) (“When the magistrate provides such notice and a
party still fails to object to the findings of fact and those findings are adopted by the district
court the party may not challenge them on appeal in the absence of plain error or manifest
injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE, on this the 3rd day of March, 2021.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge