Clark v. Butler (INMATE 2)

Opinion

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

RICHARD M. CLARK, #306 258, ) ) Plaintiff, ) ) v. ) CASE NO. 2:20-cv-671-WKW-JTA ) [WO] WARDEN BUTLER, et al., ) ) Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Richard Clark, proceeding pro se, filed this 42 U.S.C. § 1983 action on September 1, 2020. Defendants have since filed Answers, Written Reports, and supporting evidentiary materials denying Plaintiff’s allegations in the Amended Complaint. Docs. 17, 21, 27. On March 30, 2021, the Court instructed Plaintiff to file a response to Defendants’ materials by April 20, 2021. Doc. 33. The Court cautioned Plaintiff that his failure to file a response would result in a recommendation this case be dismissed for failure to prosecute. Id. To date, Plaintiff has not filed a response to Defendants’ materials or otherwise complied with the Court’s March 30, 2021, Order. 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 March 30, 2021, Order. Considering Plaintiffs disregard for orders of this Court, the undersigned further finds sanctions lesser than dismissal would not suffice 1n this case. Accordingly, the undersigned Magistrate Judge RECOMMENDS this case be DISMISSED without prejudice. The parties may file any objections to the Recommendation on or before August 27, 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 12th day of August, 2021.

UMTED STATES MAGISTRATE JUDGE