United States District Court, S.D. Florida
REPORT OF MAGISTRATE JUDGE
Cause is before the Court upon sua sponte review of
the file in light of the Court's previous orders
directing Petitioner to file a motion to proceed in forma
pauperis (IFP) or, alternatively, to pay the filing fee,
[ECF 4] and an order to amend his petition. [ECF 5]. This
habeas action presents a procedural history that amounts to
the failure of Petitioner to comply with the Court's
cause has been referred to the Undersigned for consideration
and report pursuant to 28 U.S.C. § 636(b)(1)(B), (C);
S.D. Fla. Local Rule 1(f) governing Magistrate Judges; S.D.
Fla. Admin. Order 2019-2.
about May 5, 2019, Plaintiff filed an original petition,
which was not on the proper form and failed to comport with
the Rules. [ECF 1]. The Court issued an order of
instructions, an order requiring the payment of the filing
fee or the proper filing of an IFP motion accompanied by the
inmate account statement, and an order to amend the petition.
[See ECF 3, 4, and 5]. Within the order to amend,
the Court warned Petitioner that failure to file a petition
in accordance with the Rules or the failure to file an
amended petition pursuant to the Court's order could lead
to the dismissal of his claims. [ECF 5]. The amended petition
and the IFP motion or payment were due no later than June 22,
2019. [Id.]. Petitioner has not responded to either
the Court received two notices of undeliverable mail for
Petitioner. [ECF 6, 7]. Petitioner has not filed a notice of
a change of address as required by the Order of Instructions.
failed to amend his petition in accordance with this
Court's orders and has not provided the Court with a
forwarding address. The Court must now determine how to
address Plaintiff's failure to comply with this
Court's directive and failure to prosecute this case. For
the reasons set forth below, the undersigned recommends that
the petition be dismissed without prejudice.
district court has inherent authority to manage its own
docket ‘so as to achieve the orderly and expeditious
disposition of cases.'” Equity Lifestyle
Props., Inc. v. Fla. Mowing & Landscape Serv., Inc.,
556 F.3d 1232, 1240 (11th Cir. 2009) (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991). Such authority
includes the power to dismiss a case for failure to prosecute
or failure to comply with a court order. Id.
(citing Fed. R. Civ. P. 41(b). See also Link v.
Wabash R.R., 370 U.S. 626, 630 (1962) (interpreting Rule
41(b) not to restrict the court's inherent authority to
dismiss sua sponte an action for lack of
prosecution); Hyler v. Reynolds Metal Co., 434 F.2d
1064, 1065 (5th Cir. 1970) (“It is well settled that a
district court has inherent power to dismiss a case for
failure to prosecute…”). Courts undoubtedly possess
the power to dismiss an action for “failure to
prosecute with reasonable diligence or to comply with [the
Court's] orders or rules of procedure.” Wahl v.
McIver, 773 F.2d 1169, 1174 (11th Cir. 1985); see
also Equity Lifestyle Props., supra (“The court
may dismiss a claim if the plaintiff fails to prosecute it or
comply with a court order.”); Gratton v. Great Am.
Communications, 178 F.3d 1373, 1374 (11th Cir. 1999)
(observing that Rule 41(b) expressly “authorizes a
district court to dismiss a complaint for … failure to
comply with a court order). But the Eleventh Circuit has held
that dismissal of an action for failure to prosecute should
be undertaken “only in the face of a clear record of
delay or contumacious conduct by the plaintiff.”
McKelvey v. AT&T Techs., Inc., 789 F.2d 1518,
1520 (11th Cir. 1986). Such conduct includes
“protracted foot-dragging, ” “defiance of
court orders, ” “ignoring warnings, ” and
“wasteful expenditure of the court's time.”
Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5
(1st Cir. 2002).
Petitioner failed to amend his petition or otherwise respond
to this Court's orders; therefore, the Court is unable to
move forward with this case. In addition, Petitioner was
given ample time amend but did not comply. Accordingly, this
case should be DISMISSED without prejudice for failure to
follow this Court's orders. Because dismissal does not
waive any statute of limitations or other procedural defenses
which may apply to any future habeas petition, Petitioner is
cautioned that dismissal may not guarantee federal
consideration of his claims should he re-file another
petition later in time
reasons set forth above, the undersigned recommends that the
case against the respondent be DISMISSED without prejudice
pursuant to Rule 41(b) for Plaintiff's failure to comply
with the orders of this Court, and that the case be closed.
See also Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir.1989) (“While dismissal is an extraordinary remedy,
dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of
to this report may be filed with the District Judge within
fourteen days of receipt of a copy of the report. Failure to
do so will bar a de novo determination by the
District Judge of anything in the recommendation and will bar
an attack, on appeal, of the factual findings of the
Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);
Thomas v. ...