[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 17, 2005
No. 05-12660 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01146-CV-JTC-1
NIGEL RENARD SANDERS,
Plaintiff-Appellant,
versus
JACKIE BARRETT,
VERONICA THOMAS,
MRS. CARSON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 17, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Nigel Sanders, a prisoner proceeding pro se, appeals the dismissal, in part,
of his
42 U.S.C. § 1983 civil complaint for failure to comply with an order of the
court, and the 28 U.S.C. § 1915A(b) dismissal, in part, of defendant Fulton County
Sheriff Jackie Barrett for failure to state a claim.
Sanders’s § 1983 claim is based on allegations that two Fulton County
jailers, Veronica Thomas and Mrs. Carson, used excessive force and denied him
medical care while he was an inmate at Fulton County jail. After conducting a
frivolity determination pursuant to § 1915A, the district court dismissed Barrett as
a defendant, but determined that Sanders’s claims should proceed against Thomas
and Carson. The district court ordered Sanders to complete and return a USM 285
form, summons, and initial disclosures form for each defendant. Nearly five
months later, the district court dismissed without prejudice Sanders’s action for
failure to comply with the court’s order to return the required forms.
Sanders argues that the district court erred in dismissing his action for failure
to comply with a court order. He states that he complied with the order by
attempting to mail the required forms through the Georgia State Prison’s indigent
postage system, and he further contends that the district court should have notified
him of his non-compliance prior to dismissing his action.
We review a dismissal without prejudice under Federal Rule of Civil
2
Procedure 41(b) for abuse of discretion.1 Dynes v. Army Air Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983) (per curiam). When a dismissal without
prejudice does not preclude further litigation, we review the dismissal using a more
lenient standard than if the dismissal had resulted in further litigation being time-
barred.2 McGowan v. Faulkner Concrete Pipe Co.,
659 F.2d 554, 556 (5th Cir.
Unit A Oct. 1981); Boazman v. Econ. Lab., Inc.,
537 F.2d 210, 212-13 (5th Cir.
1976).3
The district court’s “power to dismiss is an inherent aspect of its authority to
enforce its orders and ensure prompt disposition of lawsuits.” Jones v. Graham,
709 F.2d 1457, 1458 (11th Cir. 1983) (per curiam). The court may dismiss an
action sua sponte under Rule 41(b) for failure to prosecute. F ED. R. C IV. P. 41(b);
Lopez v. Aransas County Indep. Sch. Dist.,
570 F.2d 541, 544 (5th Cir. 1978).
1
Although the district court’s order cited Local Rule 41.2C, which permits dismissal
without prejudice for failing to update an address or telephone number, it appears that the district
court dismissed the complaint pursuant to either Fed. R. Civ. P. 41(b) or Local Rule 41.3A(2) for
failure to comply with an order of the court since the district court’s reasoning is based on
appellant’s failure to comply with the court order to return the USM 285 form, summons, and
initial disclosures form.
2
Sanders’s earliest allegation is an assault that occurred on August 31, 2003. Each state’s
tort action for recovery of damages for personal injury supplies the statute of limitations period
for a § 1983 action. Wilson v. Garcia,
471 U.S. 261 (1985). In Georgia, that period is two years.
O.C.G.A. § 9-3-33. The district court dismissed the complaint on April 8, 2005, within the
applicable two-year statute of limitations.
3
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
3
Failure to comply with local rules is also grounds for dismissal under Rule 41(b).
Kilgo v. Ricks,
983 F.2d 189, 192 (11th Cir. 1993).
Here, Sanders was informed that failure to comply with the court’s order
could result in dismissal, and the district court explicitly stated that the dismissal
was without prejudice. Although Sanders states that he complied with the court’s
order by completing the forms and attempting to send them through the Georgia
State Prison’s indigent postage system, there is no evidence that the forms were
ever received by the district court. Furthermore, Sanders received a notice from
the prison that the filing containing the forms exceeded the maximum weekly
postage allowance for indigent prisoners’ mail. He therefore had an opportunity to
inquire into the status of his filing with the prison’s mail room. Because the
district court warned Sanders that failure to comply with the court’s order could
result in dismissal, and because the district court dismissed his complaint without
prejudice before the expiration of the statute of limitations, we find no abuse of
discretion in the dismissal.
Sanders next argues that the district court erred in dismissing former Fulton
County Sheriff Barrett for failure to state a claim during a frivolity determination
under § 1915A. We review a sua sponte dismissal for failure to state a claim under
§ 1915A(b)(1) de novo. Leal v. Georgia Dep’t of Corr.,
254 F.3d 1276, 1279 (11th
4
Cir. 2001) (per curiam).
Liability of supervisory officials under § 1983 cannot be predicated on
vicarious liability or respondeat superior. Hartley v. Parnell,
193 F.3d 1263, 1269
(11th Cir. 1999). Supervisory officials can be liable if they personally participate
in the alleged constitutional violation or where there is a “causal connection
between actions of the supervising official and the alleged constitutional
deprivation.”4
Id. (quoting Brown v. Crawford,
906 F.2d 667, 671 (11th Cir.
1990)).
Sanders did not allege in his complaint that Barrett personally participated in
his alleged deprivations, nor did he allege any causal connection between Barrett’s
actions and his alleged constitutional deprivation. For the first time on appeal,
Sanders alleges new facts in an attempt to state a claim against Barrett under §
1983. “[A]ppellate courts generally will not consider an issue or theory that was
4
The causal connection can be established when a history of widespread abuse puts
the responsible supervisor on notice of the need to correct the alleged deprivation,
and he fails to do so. The deprivations that constitute widespread abuse sufficient
to notify the supervising official must be obvious, flagrant, rampant and of
continued duration, rather than isolated occurrences. In addition, the causal
connection may be established and supervisory liability imposed where the
supervisor’s improper custom or policy . . . result[s] in deliberate indifference to
constitutional rights.
Hartley, 193 F.3d at 1269 (internal quotations and citations omitted).
5
not raised in the district court.”5 Narey v. Dean,
32 F.3d 1521, 1526 (11th Cir.
1994) (internal quotation omitted). Sanders could have amended his complaint
before the district court dismissed his action against Barrett, but failed to do so.
See Brown v. Johnson,
387 F.3d 1344, 1348-49 (11th Cir. 2004). Therefore, the
district court did not err in dismissing Sanders’s action against Barrett.
Upon review of the district court record and Sanders’s brief, we find no
reversible error. Because the district court did not err in dismissing appellant’s §
1983 action or defendant Fulton County Sheriff Jackie Barrett, we affirm.
AFFIRMED.
5
Although this Court recognizes five exceptions to this general rule, none apply in the
instant case. See Narey,
32 F.3d at 1526-27.
6
