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Bennett v. Department of Children & Families

United States District Court, N.D. Florida, Panama City Division

June 3, 2019

JOHN W. BENNETT, JR, et al., Plaintiffs,
v.
DEPARTMENT OF CHILDREN & FAMILIES, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE

         The 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 to prosecute.[1]

         I. Background

         Plaintiffs, 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.

         On 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).

         On 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.

         On May 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.

         II. Discussion

         “A 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 circumstances”).

         In recommending dismissal, the undersigned has taken into consideration the following seven factors, among others:

         (1) 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.

         (2) The Plaintiff's failure to comply with multiple orders. The Plaintiff has failed to comply with three orders:

a. the undersigned's order of January 4, 2019;
b. the undersigned's order of March 22, ...

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