United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.
clerk of the court referred this case to the undersigned upon
Plaintiff's failure to respond to the order to show cause
issued by the undersigned on May 20, 2019. The undersigned
recommends that this action be dismissed without prejudice
for failure to comply with a court order and failure to
January 10, 2018, Plaintiff, appearing pro se and
in forma pauperis, filed this action pursuant to 42
U.S.C. § 1983 alleging violations of his Eighth
Amendment right to be free of cruel and unusual punishments.
On June 14, 2018, Plaintiff filed an amended complaint naming
two Defendants: Doctor Tammy Williams and Nurse Shane
Gilbert. (Doc. 9 at 1-3). On October 18, 2018, Magistrate
Judge Charles A. Stampelos directed service of
Plaintiff's first amended complaint on Defendant's
Williams and Gilbert. (Doc. 11).
March 15, 2019, Defendant Gilbert filed a motion to dismiss.
(Doc. 18). On March 19, 2019, Defendant Tammy Williams filed
a motion to dismiss. (Doc. 21). On March 28, 2019, Defendant
Gilbert notified this court that Plaintiff failed to keep the
clerk of the court advised of his mailing address. (Doc. 22).
The Florida Department of Corrections' public website
indicated that Plaintiff was released from prison on October
1, 2018, and his listed residence was “homeless
Jacksonville, FL.” (Doc. 23 at 1). Plaintiff did not
notify this court of his release and did not provide this
court with any address to which it could send mail or
otherwise contact Plaintiff.
March 29, 2019, to determine whether the Plaintiff was still
interested in prosecuting this case, the undersigned issued
an order directing the Plaintiff to file; (1) a notice with
the court stating his intent to continue to prosecute this
action; or (2) if he is not interested in prosecuting the
case, a motion to voluntarily dismiss the case. (Doc. 23).
The undersigned also directed Plaintiff to file a response to
the motions to dismiss in the event that Plaintiff desired to
continue to prosecute this case. The undersigned imposed a
deadline of April 29, 2019 to comply. The undersigned warned
Plaintiff that his failure to comply with this court's
order likely would result in a dismissal of this action. This
order was sent to the address provided on the summons. To
date, Plaintiff has not filed a notice with the court
indicating his desire to prosecute this case and he has not
responded to the motions to dismiss.
17, 2019, the undersigned ordered Plaintiff to explain why
this action should not be dismissed for failure to comply
with an order of the court and his failure to keep the court
apprised of his current address. Plaintiff was given
twenty-one days to comply with that order. The undersigned
again warned the Plaintiff that his failure to comply with
the court's order likely would result in dismissal of
this action. To date, Plaintiff has not responded to that
order and has not updated his address.
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); see e.g., N.D.
Fla. Loc. R. 41.1 (“If a party fails to comply with an
applicable rule or court order, the Court may strike a
pleading, dismiss a claim, enter a default on a claim, take
other appropriate action, or issue an order to show cause why
any of these actions should not be taken.”).
“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”).
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 March 29, 2019, the undersigned issued an
order directing Plaintiff to file a notice indicating his
desire to prosecute this case and to respond to the motions
to dismiss. Plaintiff failed to comply with the court's
order. On May 17, 2019, the undersigned issued an order to
show cause order and provided Plaintiff twenty-one days to
respond. Plaintiff has not responded. Thus, Plaintiff has
failed to comply with a court order since about April 29,
(2) The Plaintiff's failure to comply with two
court orders. The Plaintiff has failed to comply
with the following orders:
a. the order of March 29, ...