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Clancy v. Bartosh

United States District Court, M.D. Florida, Orlando Division

August 20, 2019

BRENNEN CLANCY, Plaintiff,
v.
MARIE BARTOSH, JENNY NIMER, OFFICER WILES AND OFFICER TAGG, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration without oral argument on the following motion:

MOTION: MOTION FOR PERMISSION TO APPEAL IN FORMA PAUPERIS AND AFFIDAVIT (Doc. No. 17)
FILED:August 13, 2019
THEREON it is RECOMMENDED that the motion be DENIED.

         On March 1, 2019, Plaintiff filed a Complaint against Defendants for deprivation of his civil rights and constitutional violations.[1] Doc. No. 1. On May 9, 2019, Plaintiff filed a motion for default judgment against Defendants. Doc. No. 8. On May 10, 2019, the undersigned issued an order denying the motion for default because Plaintiff had failed to properly serve Defendants. Doc. No. 9. The Court explained how service could be effected upon Defendants pursuant to Federal Rule of Civil Procedure 4 and advised Plaintiff that his purported service via first class mail did not constitute service. Doc. No. 9 at 2.

         On July 10, the Court issued an Order to Show Cause directing Plaintiff to show cause why the case should not be dismissed for want of prosecution and for failure to comply with Federal Rule of Civil Procedure 4(m). Doc. No. 12. Plaintiff was advised failure to reply could result in the imposition of sanctions, including dismissal. Id. On July 23, 2019, Plaintiff filed a Response to the Order to Show Cause explaining that he had been in contact with representatives for Defendants, and that he mailed certified summonses. Doc. No. 14. On July 30, 2019, the Court issued an order dismissing the case without prejudice for failure to prosecute because “Plaintiff admits [he] failed to properly serve Defendants . . . despite being given specific instructions on how to [do] so.” Doc. No. 15. The Court also noted that Plaintiff did not set forth any plans for service or provide a sufficient explanation as to why service had not yet occurred. Id.

         On August 13, 2019, Plaintiff filed a Notice of Appeal and a Motion for Permission to Appeal In Forma Pauperis and Affidavit (the “Motion”).[2] Doc. Nos. 16 and 17. When a movant seeks leave to proceed in forma pauperis his appeal is subject to a frivolity determination. Figueroa-Negron v. Calero, No. 17-13149-G, 2019 U.S. App. LEXIS 15058, at *4 (11th Cir. May 21, 2019) (citing 28 U.S.C. § 1915(e)). An action is frivolous “if it is without arguable merit either in law or fact.” Figueroa-Negron, 2019 U.S. App. LEXIS 15058, at *4 (quoting Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)).

         Plaintiff seeks review of the Court's order dismissing this case without prejudice for Plaintiff's failure to prosecute due to Plaintiff's failure to attempt proper service on Defendants. Doc. No. 16. Plaintiff was advised by the Court that his service via first class mail on Defendants did not satisfy Rule 4. Doc. No. 9 at 2. Plaintiff was also directed to respond to an order to show cause why this case should not be dismissed for failure to comply with Rule 4(m). Doc. No. 12. Rather than ask for more time to perfect service or attempt to serve in an acceptable manner, Plaintiff has maintained that his service via regular mail is sufficient for all Defendants. Doc. Nos. 8, 14, 16.

         The Court “has the inherent ability to dismiss a claim in light of its authority to enforce its orders and provide for the efficient disposition of litigation.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006); see Fed. R. Civ. P. 41(b). A district court's dismissal of an action for failure to comply with the rules of court is reviewed for an abuse of discretion. Zocaras, 465 F.3d at 483. Typically, “a dismissal without prejudice . . . is not an abuse of discretion” particularly “where a litigant has been forewarned about the possibility of dismissal.” Adeniji v. Bondi, No. 18-13860-A, 2019 U.S. App. LEXIS 17695, at *6 (11th Cir. June 12, 2019) (citing Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983) and Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). Where Plaintiff failed to take any action to correct his service problems, the Court was within its discretion to dismiss the action without prejudice. Figueroa-Negron, 2019 U.S. App. LEXIS 15058, at *5 (finding district court did not abuse its discretion in dismissing a complaint with prejudice where plaintiff failed to comply with orders which required plaintiff to file an appropriate summons, and included warnings the complaint could be dismissed); Adeniji, 2019 U.S. App. LEXIS 17695, at *6 (plaintiff repeatedly forewarned failure to amend complaint would result in dismissal and dismissal without prejudice was not an abuse of discretion). An appeal of the Court's order dismissing without prejudice would be frivolous.

         Based on the forgoing, it is RECOMMENDED that the Motion (Doc. No. 17) be DENIED.

         NOTICE TO PARTIES

         A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. Failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion ...


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