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Lee v. Neitsch

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

September 10, 2019

TRENIDY EGAR LEE, Plaintiff,
v.
ZACH NEITSCH and JOHN TATE, Defendants.

          ORDER

          Michael J. Frank United States Magistrate Judge

         This 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 two court orders and failure to prosecute.[1]

         I. Background

         Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 and alleges that Defendant Zach Neitsch, a Holmes County Deputy Sheriff, filed a “knowingly fraudulent” criminal complaint against Plaintiff. Pursuant to 28 U.S.C. §§1915(e)(2) and 1915A, the undersigned reviewed Plaintiff's complaint and found that it was deficient in several respects. (Doc. 8). On June 13, 2019, the undersigned issued an order directing 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 15). On July 9, 2019, the order was returned “undeliverable.” (Doc. 9). Plaintiff failed to comply with the undersigned's order.

         On July 30, 2019, the undersigned issued an order directing Plaintiff to explain why he failed to comply with the undersigned's previous order. (Doc. 12). The undersigned provided Plaintiff thirty days to comply and warned Plaintiff that his failure to comply likely would result in “dismissal of this action for (1) failure to comply with a court order and (2) failure to prosecute.” (Doc. 12 at 2). On August 7, 2019, this order also was returned “undeliverable.” (Doc. 13).[2] The time to comply with the undersigned's order to show cause has elapsed, and Plaintiff has not amended his complaint or explained his failure to comply with the undersigned's order.

         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); 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)).

         Federal 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 Plaintiff's failure to comply. On June 13, 2019, the undersigned issued an order directing Plaintiff to either amend his complaint or file a notice of voluntary dismissal. (Doc. 8). The undersigned provided Plaintiff thirty days to comply. (Doc. 9). Plaintiff failed to comply with that order. On July 30, 2019, the undersigned issued an order directing Plaintiff to explain why he failed to comply with an order of this court. The undersigned imposed a thirty-day deadline. (Doc. 12). Plaintiff did not comply with this order as well. Thus, Plaintiff has failed to comply with a court order since July 2019.
(2) Plaintiff's failure to comply with two court orders. Plaintiff has failed to comply with the following orders:
a. the order dated June 13, 2019; and
b. the order dated July 30, 2019.
(3) Plaintiff received notice that failure to act likely would result in dismissal. The undersigned specifically warned Plaintiff that failure to comply with the respective orders likely would result in dismissal. See 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 ...

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