Boone v. Sciacitano (INMATE 2)

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

JAQUEES MAURICE BOONE, ) #299 919, ) ) Plaintiff, ) ) v. ) CASE NO. 2:21-CV-212-WHA-CSC ) [WO] NICK SCIACITANO, STg., et al., ) ) Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This pro se 42 U.S.C. § 1983 action was filed with the Court on March 11, 2021. On May 14, 2021, the Court directed Plaintiff to submit to the Court—by June 4, 2021— an initial partial filing fee of $7.87. Doc. 6. The Court informed Plaintiff his failure to comply with the Order of the Court would result in a recommendation this case be dismissed. See Doc. 6 at 3. On June 30, 2021, the Court directed Plaintiff to show cause why this case should not be dismissed for his failure to pay the initial partial filing fee in compliance with the May 14, 2021, Order. Doc. 8. To date, Plaintiff has not submitted the initial partial filing fee or otherwise responded to the orders of the Court. A federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute or obey a court order. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629– 30 (1962); FED. R. CIV. P. 41(b). The Eleventh Circuit has made clear that “dismissal is warranted only upon a ‘clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’” Mingo v. Sugar Cane Growers Co-Op of Fla., 864 F.2d 101, 102 (11th Cir. 1989) (per curiam) (emphasis omitted) (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)). Here, the undersigned finds that Plaintiff has willfully failed to file a response in compliance with the Court’s orders of May 14, 2021, and June 30,

2021. And considering Plaintiff’s disregard for orders of this Court, the undersigned further finds sanctions lesser than dismissal would not suffice in this case. Accordingly, the undersigned Magistrate Judge RECOMMENDS this case be DISMISSED without prejudice. Objections to the Recommendation may be filed by August 24, 2021. Any

objections filed by a party must specifically identify the factual findings and legal conclusions in the Magistrate Judge’s Recommendation to which objection is made. Frivolous, conclusive or general objections will not be considered by the District Court. This Recommendation is not a final order and, therefore it is not appealable. Failure to file written objections 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, this 10th day of August 2021. /s/ Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE