explaining that generally dismissal for failure to obey a court order is not an abuse of discretion where a litigant has been forewarned
How later courts described this case
- explaining that generally dismissal for failure to obey a court order is not an abuse of discretion where a litigant has been forewarned
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JEREMIAH LEE PETTIWAY, )
)
Plaintiff, )
)
v. ) CASE NO. 2:21-CV-165-WHA-KFP
)
LARRY NIXON, )
)
Defendant. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Pro se Plaintiff Jeremiah Pettiway filed this 42 U.S.C. § 1983 action on February
24, 2021. The Court’s Order of Procedure directed Plaintiff to inform the Court
immediately of any address change and advised that a failure to do so within ten days
following a change of address would result in dismissal. Doc. 4 ¶ 8. The Order also
informed Plaintiff that he must “diligently prosecute this action or face the possibility of
dismissal for failure to prosecute. Id.
Plaintiff complied with this Order twice when his address changed. See Docs. 6, 17.
However, on September 17, 2021, the Court’s Order of September 10, 2021 (Doc. 21), was
returned as undeliverable because Plaintiff was no longer at the last address he provided.1
The Court entered an Order (Doc. 22) requiring Plaintiff to file a current address and show
cause why this case should not be dismissed for failure to prosecute, but Plaintiff’s copy
1 The last service address provided by Plaintiff was the Autauga Metro Jail in Prattville, Alabama. See Doc.
17.
of this Order was also returned as undeliverable. Therefore, the Court 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). However, Plaintiff has failed to
comply with the Order requiring him to notify the Court within ten days of any address
change, this case cannot proceed in his absence, and it appears that he is no longer
interested in prosecuting this case. Further, additional efforts to secure Plaintiff’s
compliance would be unavailing and a waste of the Court’s scarce 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) (explaining that generally dismissal for
failure to obey a court order is not an abuse of discretion where a litigant has been
forewarned). 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) (recognizing that a “district court possesses the
inherent power to police its docket” and that sanctions imposed on “dilatory litigants . . .
can range from a simple reprimand to an order dismissing the action with or without
prejudice”).
For these reasons, the Magistrate Judge RECOMMENDS that this case be dismissed
without prejudice for Plaintiff’s failure to comply with court orders and prosecute this case.
It is further ORDERED that by October 19, 2021, the parties may file objections to
the Recommendation. The parties must specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made. Frivolous, conclusive, or
general objections will not be considered by the Court. The parties are advised that this
Recommendation is not a final order and, therefore, is not appealable.
Failure to file written objections to the Magistrate Judge’s findings and
recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo
determination by the District Court of legal and factual issues covered in the
Recommendation and waive the right of the party to challenge on appeal the District
Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by
the District Court except on grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); 11th Cir. R. 3-1. See Stein v. Reynolds Sec.,
Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206
(11th Cir. 1981) (en banc).
DONE this 5th day of October, 2021.
/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE