Stewart v. Shelton

• Court: District Court, S.D. Georgia
• Decided: October 18, 2023
• Docket: 1:23-cv-00057
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

CHRISTOPHER BRYAN STEWART, ) ) Plaintiff, ) ) v. ) CV 123-057 ) DEPUTY WARDEN RUTHIE SHELTON ) and LT. LATORIA JACKSON, ) ) Defendants. ) ________________________________________________________

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ________________________________________________________ Plaintiff, represented by counsel McNeill Stokes, filed the above-captioned case on May 15, 2023, and paid the filing fee. (Doc. no. 1.) On May 16, 2023, the Clerk of Court issued summons to Defendants. (Doc. no. 2.) Since May 16th, there has been no evidence in the record that Defendants Shelton and Jackson have been properly served by Plaintiff pursuant to Fed. R. Civ. P. 4 and Local Rule 4.3. On September 29, 2023, the Court ordered Plaintiff to explain the reason(s) for the delay in service of process and why the unserved Defendants should not be dismissed without prejudice for failure to timely effect service. (Doc. no. 4.) Plaintiff nor Plaintiff’s counsel responded to the Order. Plaintiff has not shown good cause for failing to timely effect service, and the Court finds no other circumstances warrant an extension of the service period. The Advisory Committee Note to Rule 4(m) provides guidance as to factors that may justify an extension of time for service. Such considerations include if a defendant is evading service or if the statute of limitations would bar a refiled action. Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (citing Advisory Committee Note to Rule 4(m), 1193 Amd.). The record does not reflect any attempt by Plaintiff to cure or effect service, let alone suggest

either Defendant may be evading service. Moreover, Plaintiff did not respond to the Court’s September 29th Order or otherwise taken any action since the filing of the case on May 15th. Thus, Plaintiff has abandoned his case. A district court has authority to manage its docket to expeditiously resolve cases, and this authority includes the power to dismiss a case for failure to prosecute or failure to comply with a court order. Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)); see also Eades v.

Ala. Dep’t of Human Res., 298 F. App’x 862, 863 (11th Cir. 2008) (per curiam) (“District courts possess the ability to dismiss a case . . . for want of prosecution based on two possible sources of authority: Fed. R. Civ. P. 41(b) or their inherent authority to manage their dockets.”). Additionally, the Local Rules of the Southern District of Georgia provide that an “assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice . . . [for] [w]illful disobedience or neglect of

any order of the Court; or [a]ny other failure to prosecute a civil action with reasonable promptness.” Loc. R. 41.1(c). Finally, dismissal without prejudice is generally appropriate pursuant to Rule 41(b) where a plaintiff has failed to comply with a court order, “especially where the litigant has been forewarned.” Owens v. Pinellas Cty. Sheriff’s Dep’t, 331 F. App’x 654, 655 (11th Cir. 2009) (per curiam) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)); see_also Loc. R. 41.1(b) (Court may dismiss an action sua sponte for “willful disobedience or neglect of any order of the Court’). In sum, Plaintiff commenced this case over one hundred and fifty days ago, the Court warned Plaintiff he must explain the reason(s) for the delay in service of process and why the unserved Defendants should not be dismissed without prejudice for failure to timely effect service, (doc. no. 4), and Plaintiff failed to respond. Accordingly, the Court REPORTS and RECOMMENDS this case be DISMISSED without prejudice for failure to timely effect service on Defendants and abandonment of the case. See Schnabel v. Wells, 922 F.2d 726, 728-29 (11th Cir. 1991); Eades, 298 F. App’x at 863; Fed. R. Civ. P. 41(b). SO REPORTED and RECOMMENDED this 18th day of October, 2023, at Augusta, Georgia.

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UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA