Opinion
Case No. 3:06cv388/RV/EMT.
July 9, 2008
REPORT AND RECOMMENDATION
This cause is before the court upon referral from the clerk. Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 (Doc. 1). Leave to proceed in forma pauperis was granted (Doc. 6). Plaintiff then filed an amended civil rights complaint (Doc. 8). The amended complaint was served upon Defendant, and Defendant responded by filing a special report on August 31, 2007, as instructed by the court ( see Docs. 11, 21, 22). On September 5, 2007, the court directed Plaintiff to file a response to the special report within thirty (30) days (Doc. 23). On September 28, 2007, Plaintiff requested an extension of time within which to file a response to the special report (Doc. 24). Although the court granted Plaintiff's request for an extension of time, requiring Plaintiff to file a response on or before December 7, 2007, Plaintiff failed to file a timely response (Doc. 25). On January 14, 2008, Plaintiff still having failed to file a response to the special report, the court advised the parties that the special report would be treated as a motion for summary judgment and deemed submitted on February 11, 2008 ( see Doc. 27). The court again directed Plaintiff to file a response to the special report/motion for summary judgment on or before February 11, 2008 ( id.). Due to the possibility that Plaintiff did not receive a copy of the order (Doc. 27) until after February 11, 2008, the court, sua sponte, granted Plaintiff a final extension of time, to March 28, 2008, for filing a response to Defendant's motion for summary judgment ( see Doc. 33). Plaintiff again failed to respond; therefore, on May 30, 2008, the court issued an order directing Plaintiff to notify the court, within twenty (20) days, of his continued interest in pursuing the instant litigation ( see Doc. 34). Over twenty (20) days have elapsed with no response from Plaintiff. Furthermore, the court notes that prior to the order issued on May 30, 2008, Plaintiff had not filed pleadings or responded to orders of the court for a period of more than ninety (90) days. Rule 41.1(A) of the Local Rules for the Northern District of Florida provides:
Whenever it appears that no activity by filing of pleadings, orders of the court or otherwise has occurred for a period of more than ninety (90) days in any civil action, the court may, on motion of any party or on its own motion, enter an order to show cause why the case should not be dismissed. If no satisfactory cause is shown, the case may then be dismissed by the court for want of prosecution.
Rule 41.1(B) provides:
On motion of any party or on its own motion, the court may enter an order to show cause why a claim, counterclaim, cross claim, or defense, should not be dismissed for failure to comply with these rules, the Federal Rules of Civil Procedure, or a court order. If good cause is not shown, a dismissal may be entered for this reason.
Accordingly, 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, pursuant to Rule 41.1 of the Local Rules for the Northern District of Florida.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts , 858 F.2d 698, 701 (11th Cir. 1988).