Opinion
4:21cv476-AW-MAF
01-10-2022
MICHAEL J. GANT, DOC # P13387, Plaintiff, v. MARK INCH, et al., Defendants.
REPORT AND RECOMMENDATION
MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE
Michael Gant sought to initiate a case in this Court by submitting a petition for writ of mandamus, ECF No. 1, in late November 2021. An Order was entered which alerted Plaintiff to several problems with that filing, the first of which was that Plaintiff did not pay the filing fee or file a motion requesting in forma pauperis status. ECF No. 3. Plaintiff was given until December 30, 2021, to either file an in forma pauperis motion, pay the $402.00 filing fee, or file a notice of voluntary dismissal pursuant to Rule 41. Id. As of this date, nothing further has been received from Plaintiff and it appears he has abandoned this litigation.
“A district court, as part of its inherent power to manage its own docket, may dismiss a case sua sponte” when a Plaintiff “fails to prosecute or” otherwise comply with a court order. See Ciosek v. Ashley, No. 3:13cv147-RV-CJK, 2015 WL 2137521, at *2 (N.D. Fla. May 7, 2015). The Supreme Court has held that “[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs . . . . ” Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962) (quoted in Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)); see also N.D. Fla. Loc. R. 41.1. Furthermore, the Eleventh Circuit Court of Appeals has noted that “[w]hile dismissal is an extraordinary remedy, dismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). It is within this Court's discretion and “inherent authority” to dismiss an action for failing to comply with a court Order. Smith v. Bruster, 424 Fed.Appx. 912, 915 (11th Cir. 2011) (stating it “was within the district court's discretion to dismiss the plaintiffs' § 1983 action without prejudice either under Rules 11 and 41(b) or under its inherent authority”). Here Plaintiff was forewarned of the consequences of failing to comply with the Order. ECF No. 3 at 4. Because Plaintiff did not comply and has failed to prosecute this case, dismissal is appropriate.
RECOMMENDATION
It is respectfully RECOMMENDED that this case be DISMISSED for failure to prosecute and failure to comply with a Court Order.
IN CHAMBERS.
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Fed.R.Civ.P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. If a party fails to object to the Magistrate Judge's findings or recommendations as to any particular claim or issue contained in this Report and Recommendation, that party waives the right to challenge on appeal the District Court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.