United States District Court, N.D. Florida, Pensacola Division
STEVEN L. STILLWELL, Plaintiff,
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
matter is before this court on Plaintiff's failure to
respond to the undersigned's order of August 19, 2019.
The undersigned recommends that this action be dismissed
without prejudice for failure to comply with court orders and
failure to prosecute.
a former inmate of the Florida Department of Corrections
(FDOC), commenced this suit pursuant to 42 U.S.C. §
1983. Plaintiff alleged violations of the Eighth and
Fourteenth Amendments and named only one Defendant. Plaintiff
also filed a motion for leave to proceed in forma
pauperis. (Doc. 2). On November 2, 2018, Chief
Magistrate Judge Elizabeth M. Timothy denied this motion
without prejudice. (Doc. 4). Judge Timothy imposed a
thirty-day deadline for Plaintiff to either pay $400.00
($350.00 filing fee and $50.00 administrative fee) or submit
a properly completed motion for leave to proceed in forma
pauperis. (Id.). On January 4, 2019,
Plaintiff's second motion for leave to proceed in
forma pauperis was docketed. (Doc. 6). On January 9,
2019, Judge Timothy granted this motion and assessed an
initial partial filing fee of $13.66. (Doc. 7). Judge Timothy
imposed a thirty-day deadline for Plaintiff to comply with
the order and warned Plaintiff that his failure to comply
“may result in a recommendation of dismissal of this
action.” (Id. at 7). The time elapsed for
Plaintiff to comply, and Plaintiff failed to pay the initial
partial filing fee.
undersigned reviewed Plaintiff's complaint and found that
it was deficient in several respects. (Doc. 9). On April 23,
2019, the undersigned issued an order directing the Plaintiff
to amend his complaint to correct the deficiencies or to file
a voluntary dismissal. (Id.). The undersigned
imposed a thirty-day deadline to comply and warned Plaintiff
that his failure to comply would “likely result in
dismissal of this action for: (a) failure to comply with an
order of this court; (b) failure to prosecute; and (c)
failure to state a claim on which relief may be
granted.” (Id. at 12). Plaintiff failed to
comply by the deadline.
3, 2019, the undersigned issued an order directing Plaintiff
to explain why he failed to comply with the undersigned's
order of April 23, 2019. (Doc. 10). The undersigned imposed a
thirty-day deadline and again warned Plaintiff that his
failure to comply would likely result in dismissal.
10, the undersigned issued an order to show cause directing
Plaintiff to explain why he failed to comply with Judge
Timothy's order directing him to pay the initial partial
filing fee of $13.66. (Doc. 11). The undersigned imposed a
thirty-day deadline for Plaintiff to comply and again warned
Plaintiff that his failure to comply likely would result in
dismissal of this action.
22, 2016, the clerk of the court docketed a letter from Santa
Rosa Correctional Institution indicating that these orders
could not be delivered to the Plaintiff at the address
provided. (Doc. 12). Upon review of the Florida Department of
Corrections website, the court became aware of
Plaintiff's release from prison. Thus, the undersigned
issued an order directing Plaintiff to file a notice
indicating his desire to prosecute this case and to pay his
initial partial filing fee. (Doc. 13). The undersigned
imposed a deadline of September 3, 2019, to comply. Plaintiff
failed to comply with the undersigned's order.
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 January 9, 2019, Judge Timothy issued an
order directing Plaintiff to pay an initial partial filing
fee of $13.66. (Doc. 7). Judge Timothy's order provided
Plaintiff thirty days to comply. Thus, Plaintiff has failed
to comply with Judge Timothy's order since February 8,
(2) The Plaintiff's failure to comply with
several court orders. The Plaintiff has failed to
comply with ...