Opinion
CIVIL ACTION NO. 2:16-CV-349-WHA [WO]
11-30-2016
SYLVESTER WOOLEY, #235 771, Plaintiff, v. LT. JOHN HUDSON, Defendant.
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, a prison inmate, filed this complaint on May 16, 2016. On May 18, 2016, the court directed Defendants to file an answer and written report addressing Plaintiff's claims for relief. In compliance with the court's order, Defendants submitted an answer and special report on July 13, 2016 and a supplemental special report on August 15, 2016 containing relevant evidentiary materials refuting the allegations in the complaint. Docs. 11, 12 & 14. Upon review of these reports, the court issued an order directing Plaintiff to file a response to Defendants' answer and special report, as supplemented. Doc. 15. The order advised Plaintiff that his failure to respond to the reports would be treated by the court "as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action." Doc. 15 at 1. And the order "specifically cautioned [Plaintiff] that [his failure] to file a response in compliance with the directives of this order" would result in the dismissal of this civil action. Doc. 15 at 1.
The time allotted to Plaintiff for filing a response in compliance with the directives of the court's September 13, 2016 order expired on October 4, 2016. As of the present date, Plaintiff has failed to file a response in opposition to Defendant's special report, as supplemented. The court therefore concludes that this case should be dismissed.
In arriving at this conclusion, the court has reviewed the file to determine whether a measure less drastic than dismissal is appropriate. After this review, dismissal is the proper course of action. Plaintiff is an indigent individual so the imposition of monetary or other punitive sanctions against him would be ineffectual. Moreover, Plaintiff's inaction in the face of Defendants' reports and evidentiary materials refuting his claims suggests he does not seek to proceed with this case. It therefore appears that any additional effort by this court to secure his compliance would be unavailing. Consequently, the court concludes that Plaintiff's abandonment of his claims and his failure to comply with an order of this court warrant dismissal. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding that, as a general rule, dismissal for failure to obey a court order is not an abuse of discretion where a litigant has been forewarned); see also Tanner v. Neal, 232 F. App'x 924 (11th Cir. 2007) (affirming sua sponte dismissal without prejudice of inmate's § 1983 action for failure to file an amendment to complaint in compliance with court's prior order directing amendment and warning of consequences for failure to comply).
For these reasons, it is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED without prejudice.
It is further ORDERED that on or before December 14, 2016, the parties may file an objection to the Recommendation. Any objection filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised this Recommendation is not a final order and, therefore, it is not appealable. Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE on this 30th day of November, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE