Henderson v. Smith (INMATE 1)

Opinion

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

JERMAINE HENDERSON, #224190, ) ) Plaintiff, ) ) v. ) CASE NO. 2:21-CV-575-WHA-CSC ) [WO] TYRONE SMITH, ) ) Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE Plaintiff, an inmate incarcerated at the Decatur Work Release Facility, filed this pro se 42 U.S.C. § 1983 action on August 30, 2021. On September 21, 2021, the Court directed Plaintiff to forward to the Clerk of Court an initial partial filing fee in the amount of $151.90. Doc. 6. The Court cautioned Plaintiff his failure to comply with the September 21 Order would result in a Recommendation his Complaint be dismissed. Doc. 6 at 3. On October 13, 2021, the Court granted Plaintiff an extension to October 29, 2021, to comply with the September 21, 2021, Order that he submit an initial partial filing fee. Doc. 8. To date, Plaintiff has not submitted the initial partial filing fee or otherwise complied with the Court’s September 21, 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 Court finds Plaintiff has willfully failed to comply

with the directives of the Court’s September 21, 2021, Order. And considering Plaintiff’s disregard for orders of this Court, the Court further finds that sanctions lesser than dismissal would not suffice in this case. Accordingly, the undersigned Magistrate Judge RECOMMENDS this case be DISMISSED without prejudice. It is ORDERED that objections to the Recommendation of the Magistrate Judge

must be filed by January 4, 2022. Any objections filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge’s Recommendation to which a party objects. 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 21st day of December 2021. /s/ Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE