United States District Court, N.D. Florida, Panama City Division
JOHN W. BENNETT, JR, et al., Plaintiffs,
DEPARTMENT OF CHILDREN & FAMILIES, et al., Defendants.
REPORT AND RECOMMENDATION
MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE
clerk of the court referred this case to the undersigned upon
Plaintiffs' failure to respond to the order to show cause
issued by the undersigned on May 1, 2019. (Doc. 10). The
undersigned recommends that this action be dismissed without
prejudice for failure to comply with court orders and failure
proceeding pro se, filed this action on December 21,
2018, pursuant to 42 U.S.C. § 1983. The gravamen of the
complaint is that employees of the State of Florida or a
Florida municipality took custody of the child of Plaintiff
Jessie L. Cox. The child's initials are
“GCU.” John W. Bennett, Jr., is also a Plaintiff
in this case, but he is not related to GCU, is not GCU's
guardian, and never had custody of GCU.
January 4, 2019, this court issued an order that identified
numerous deficiencies and instructed the Plaintiffs to file
an amended complaint and motion to proceed in forma
pauperis. The deficiencies included (1) violations of
Rule 5.2 of the Federal Rules of Civil Procedure insofar as
the complaint contained the full name of a minor and personal
identifying information, including social security numbers
and dates of birth; (2) a violation of Local Rule 5.1(E) and
Fed.R.Civ.P. 11(a) insofar as Plaintiff Jessie L. Cox did not
sign the complaint and it is unclear whether she even knows
that this lawsuit was initiated on her behalf; (3) a
violation of Local Rule 5.7(B), insofar as the complaint was
128 pages in length and was composed of mostly irrelevant
attachments, which exceeded the 25-page limit. The
undersigned gave the Plaintiffs thirty days to either file an
amended complaint or a notice of voluntary dismissal and to
file a properly completed motion to proceed in forma
pauperis. Plaintiffs were warned that failure to comply
with the undersigned's order likely would result in
dismissal of this action. (id. at 11).
March 4, 2019, Plaintiffs filed an amended complaint and
motion to proceed in forma pauperis. (Docs. 7, 8).
The amended complaint and motion to proceed in forma
pauperis contained the same deficiencies noted in the
undersigned's order issued on January 4, 2019. (Doc. 7).
On March 22, 2019, therefore, the undersigned issued another
order noting the numerous deficiencies with the complaint and
instructing the Plaintiffs to correct these deficiencies by
April 22, 2019. (Doc. 9). The undersigned warned the
Plaintiffs that failure to comply with that order likely
would result in dismissal of this action. (id. at
10). Plaintiffs failed to file an amended complaint by the
April 22 deadline.
1, 2019, the undersigned ordered Plaintiffs to show cause why
this action should not be dismissed for, among other things,
failure to comply with an order of the court, and failure to
prosecute. (Doc. 10). This court warned Plaintiffs: failure
to comply with the court's order likely would result in
dismissal of this action. (Doc. 10). Plaintiffs never
responded to the order to show cause. Further, Plaintiffs
never filed a properly completed motion to proceed in
forma pauperis, never paid the filing fee, and never
filed a properly amended complaint.
federal court has at its disposal an array of means to
enforce its orders, including dismissal in an appropriate
case.” Degen v. United States, 517 U.S. 820,
827, 116 S.Ct. 1777, 1782 (1996). “Federal courts
possess an inherent power to dismiss a complaint for failure
to comply with a court order.” Foudy v. Indian
River Cty. Sheriff's Office, 845 F.3d 1117, 1126
(11th Cir. 2017); Equity Lifestyle Properties, Inc. v.
Florida Mowing & Landscape Serv., Inc., 556 F.3d
1232, 1240 (11th Cir. 2009) (“The court may dismiss a
claim if the plaintiff fails to prosecute it or comply with a
court order.”); see Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962) (noting
the inherent power of courts to dismiss an action is not
precluded by Fed.R.Civ.P. 41(b)). Courts may sua
sponte dismiss cases for failure to comply with court
orders and for failure to prosecute an action. Costello
v. United States, 365 U.S. 265, 286-87, 81 S.Ct. 534,
545 (1961) (noting that a district court may sua
sponte dismiss a complaint for a plaintiff's failure
to comply with an order of the court); Snider v.
Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (noting that
the Supreme Court has “long held that courts may
dismiss actions on their own motion in a broad range of
recommending dismissal, the undersigned has taken into
consideration the following seven factors, among others:
The duration of the Plaintiff's failure to
comply. On January 4, 2019, this court gave the
Plaintiff's thirty days to file an amended complaint that
corrected the deficiencies noted in the undersigned's
order. (Doc. 5). On March 4, 2019, Plaintiffs filed an
amended complaint that failed to correct the deficiencies
identified in the undersigned's order of January 4. (Doc.
7). On March 22, 2019, therefore, the undersigned issued a
second order to amend the complaint. (Doc. 9). The
undersigned gave the Plaintiff's thirty days to file a
second amended complaint that corrected the deficiencies
noted in the undersigned's order of January 4. (Doc. 10).
To date, Plaintiffs still has not complied with that order.
On May 1, 2019, the undersigned ordered Plaintiffs to show
cause within thirty days why this action should not be
dismissed. Plaintiffs also have not complied with that order.
The Plaintiff's failure to comply with multiple
orders. The Plaintiff has failed to comply with
a. the undersigned's order of January 4, 2019;
b. the undersigned's order of March 22, ...