Opinion
3:22cv5435/MCR/ZCB
07-15-2024
SEAN IRA NESBITT, Plaintiff, v. LT. DANIO, et al., Defendants.
REPORT AND RECOMMENDATION
ZACHARY C. BOLITHO, UNITED STATES MAGISTRATE JUDGE
This is a pro se prisoner civil rights case brought under 42 U.S.C. § 1983. (Doc. 1). Plaintiff has failed to comply with Court orders, and he has failed to prosecute this case. Therefore, this case should be dismissed without prejudice.
On April 5, 2023, the Court ordered Plaintiff to respond in opposition to Defendants' motion for summary judgment by May 5, 2023. (Doc. 38). That deadline passed, and Plaintiff failed to file any response in opposition to Defendants' motion.Defendants then moved to reopen discovery to obtain video footage, secure medical records, and conduct Plaintiff's deposition. (Doc. 42). The Court ordered Plaintiff to respond to Defendants' motion. (Doc. 44). Plaintiff filed no response. On December 8, 2023, Defendants filed a second motion for summary judgment. (Doc. 51). The Court ordered Plaintiff to respond in opposition to the motion by December 29, 2023. (Doc. 53). No response was filed. And most recently, the Court ordered Plaintiff to show cause, if any, why his case should not be dismissed for failure to comply with orders of the Court and/or for lack of prosecution. (Doc. 54). The time for compliance with the show cause order has expired, and Plaintiff has once again filed no response.
Because Plaintiff's failure to respond in opposition does not provide the Court with a basis for granting summary judgment by default, the Court went on to rule on Defendants' motion on the merits. (Docs. 41, 43).
The Court has provided Plaintiff with repeated chances to prosecute this case. Plaintiff has not filed anything in this case since January 24, 2023. (See Doc. 34). Plaintiff's lack of participation for approximately eighteen months is a clear indication that he has abandoned this case.
Moreover, the Court has repeatedly told Plaintiff that his failure to comply with Court orders as directed would result in a recommendation of dismissal. And on June 20, 2024, the Court again told Plaintiff that failure to comply with the order to show cause would result in a recommendation of dismissal for failure to comply with a Court order and lack of prosecution. (Doc. 54). Yet, Plaintiff failed to comply with the Court's order.
For the reasons above, it is respectfully RECOMMENDED that this case be DISMISSED without prejudice for Plaintiff's failure to comply with an order of the Court and failure to prosecute. See N.D. Fla. Loc. R. 41.1 (authorizing dismissal if a “party fails to comply with an applicable rule or a court order”); see also Fed.R.Civ.P. 41(b) (authorizing dismissal if “the plaintiff fails to prosecute”); Jones v. Graham, 709 F.2d 1457, 1462 (11th Cir. 1983) (affirming dismissal where there was a “long pattern of conduct which amounted to want of prosecution and several failures by plaintiffs to obey court rules and orders”).
To the extent that Plaintiff's claims may be barred from re-filing by the statute of limitations, making this dismissal effectively one with prejudice, the Court finds that Plaintiff has engaged in a pattern of willful delay, has repeatedly ignored Court orders despite being warned that his failure to respond could result in dismissal, and lesser sanctions would be inadequate. See generally Jenkins v. Security Engineers, Inc., 798 Fed.Appx. 362, 371 (11th Cir. 2019) (affirming dismissal with prejudice for failure to prosecute where the plaintiff's conduct “demonstrated that she had no intention of pursuing her claim or complying with the district court's orders,” and the district court found a pattern of willful delay that could not be remedied with lesser sanctions). Plaintiff has repeatedly failed to comply with Court orders and has not actively participated in this litigation for approximately eighteen months. That conduct has certainly delayed this litigation-litigation that Plaintiff commenced. Additionally, lesser sanctions would not suffice to address Plaintiff's failure to comply with Court orders and his failure to prosecute this case. The Court has bent over backwards and provided Plaintiff with chance after chance to litigate this case. Yet, it is clear Plaintiff has no intent to follow the Court's orders despite being warned repeatedly that dismissal would result. The Court cannot delay the litigation in perpetuity with the hope that someday Plaintiff may re-appear and follow the Court's orders. Under the circumstances, the Court does not believe that a sanction less than dismissal would be sufficient.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.