Hoskin v. McKenzie ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION TORRECO HOSKIN, ) (#196878) ) ) Plaintiff, ) ) vs. ) CIVIL ACTION NO. 1:19-cv-107-TFM-B ) LT. BRANDON MCKENZIE, et al., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER On July 15, 2019, the Magistrate Judge entered a report and recommendation which recommends this action be dismissed without prejudice for failure to prosecute and to comply with the court’s orders. See Doc. 4. No objections were filed and the mail was returned as undeliverable. Fed. R. Civ. P. 41(b) authorizes dismissal of a complaint for failure to prosecute or failure to comply with a court order or the federal rules. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a dismissal may be done on motion of the defendant or sua sponte as an inherent power of the court. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “[D]ismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Vil, 715 F. App’x at 915 (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). “[E]ven a non-lawyer should realize the peril to [his] case, when [he] . . . ignores numerous notices” and fails to comply with court orders. Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164, 1169 (5th Cir. 1980); see also Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (As a general rule, where a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of discretion.). Therefore, the Court finds it appropriate to exercise its “inherent power” to “dismiss [Plaintiff’s claims] sua sponte for lack of prosecution.” Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); see also Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (describing the judicial power to dismiss sua sponte for failure to comply with court orders). Since the filing of his complaint on March 7, 2019, there had been no additional action by the Plaintiff despite the order for him to file an amended complaint and either file a motion to proceed in forma pauperis or pay the filing fee. Additionally, the mailed order and report and recommendation were both returned as undeliverable. See Docs. 5-6. The Court then re-mailed both the order and Recommendation on July 24, 2019 based on contact information listed on the Department of Corrections website. Plaintiff still failed to respond and failed on his obligation to keep the Court apprised of appropriate contact information. Accordingly, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge is ADOPTED and this action is DISMISSED without prejudice for failure to prosecute and obey the Court’s order. DONE and ORDERED this the 29th day of August 2019. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE