Phillips v. Johnson (INMATE 1)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

MARCUS CORNELIUS PHILLIPS, )

AIS #260424, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 3:20-CV-579-RAH

) [WO]

LT. JOHNSON, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Marcus Cornelius Phillips, a pro se inmate, initiated the instant 42 U.S.C. § 1983

action on August 10, 2020. In this civil action, Phillips challenges the constitutionality of

actions taken against him during his confinement at the Russell County Jail. Doc. 1 at 2–

6. Both the initial order requiring additional financial information from Phillips and the

order of procedure entered in this case required him to “immediately inform the court and

the defendants [or defense counsel] of any change in his address. Failure 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.” Doc. 3 at 2 & Doc. 11 at 4, ¶8. The docket indicates

Phillips received a copy of these orders. However, the postal service returned as

undeliverable an order entered on February 23, 2021, Doc. 40, because Phillips no longer

resided at the last address he had provided to the court for service.1

1The last address provided by Phillips is the Bullock Correctional Facility.

Based on the foregoing, the court entered an order noting Phillips’s failure to

provide a current address and requiring that on or before March 25, 2021 he “show cause

why this case should not be dismissed for his failure to provide the court with a current

address in compliance with the orders of this court and his failure to adequately prosecute

this action.” Doc. 41 at 2. The court further “specifically cautioned [Phillips] that if he

fails to respond to this order the Magistrate Judge will recommend that this case be

dismissed due to his failure to keep the court apprised of his current address and because,

in the absence of such, this case cannot proceed before this court in an appropriate manner.”

Doc. 41 at 2. As of the present date, Phillips has failed to provide the court with his current

address or show cause for such failure pursuant to the directives of the orders entered in

this case. The court therefore concludes that this 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, the undersigned

finds that dismissal of this case is the proper course of action. Initially, Phillips is an

indigent individual and the imposition of monetary sanctions against him would be

ineffectual. Moreover, Phillips has failed to comply with the directives of the orders

entered by this court regarding provision of a current address. It likewise appears Phillips

is simply no longer interested in the prosecution of this case and any additional effort to

secure his compliance would be unavailing and a waste of this court’s scarce resources.

Finally, this case cannot properly proceed when his whereabouts are unknown.

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Accordingly, the court concludes that Phillips’ failure to comply with the orders of

this court warrant dismissal of this case. 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) (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 April 21, 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

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“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 this 7th day of April, 2021.

/s/ Charles S. Coody

UNITED STATES MAGISTRATE JUDGE

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