United States District Court, N.D. Florida, Panama City Division
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 two court orders
and failure to prosecute.
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.
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). 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
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 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
(2) Plaintiff's failure to comply with two court
orders. Plaintiff has failed to comply with the
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 ...