Opinion
7:19-CV-125 (WLS)
03-14-2022
OTIS REDMON, Plaintiff, v. RALPH SHROPSHIRE, et al., Defendants.
ORDER AND RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, brought the above-styled action pursuant to 42 U.S.C. § 1983 on August 12, 2019. (Doc. 1). Presently pending in the above-captioned case is the Motion to Dismiss of Defendants Shropshire, Pineiro, Allen, and Miles (“Supervisory Defendants”) pursuant to Federal Rule of Civil Procedure 41 for Plaintiff's alleged failure to prosecute his claims (Doc. 45) as well as what the Court construes as Plaintiff's Motion to Appoint Counsel in his Response to the Motion to Dismiss (Doc. 47). The Court first addresses the Motion to Appoint Counsel in an Order followed by a Recommendation as to the Motion to Dismiss.
ORDER
On February 18, 2022, Plaintiff filed his Response to the Motion to Dismiss. (Doc. 47). Plaintiff requests that the Court assist him in seeking counsel. Id. at 2. The Court construes this request as a Motion to Appoint Counsel.
ORDER
Generally, no right to counsel exists in actions filed pursuant to 42 U.S.C. § 1983. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (per curiam). Appointment of counsel in civil matters “is a privilege that is justified only by exceptional circumstances.” Id. at 1174; see also McCall v. Cook, 495 Fed.Appx. 29, 31 (11th Cir. 2012) (per curiam). In deciding whether legal 1 counsel should be appointed, the Court typically considers, among other factors, the merits of the plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc).
Plaintiff alleges that the Covid-19 pandemic has severely impacted access to the law library which limited his ability to respond in a timely fashion. (Doc. 47, p. 2).
However, a review of Plaintiff's filings suggests that he has been capable, so far, of prosecuting his case pro se. Plaintiff sought and obtained permission to proceed in forma pauperis. (Docs. 2, 5). Plaintiff was not required to recast or supplement his Complaint, which proceeded through the Court's initial review. (Doc. 6). Plaintiff's Complaint is complete, his factual recitation is detailed, specific, appears logical and chronological, and is concise. (Doc. 1, pp. 5, 7). Further, Plaintiff supported his Complaint by attaching relevant documents relating to the operating procedures of the prison in which he was confined, as well as supporting Declarations of alleged witnesses. (Docs. 1-1, 1-2, 1-3, 1-4). Plaintiff timely filed a Motion to Amend following the Supervisory Defendants' Answer. (Docs. 17, 19). Plaintiff timely filed a Motion for Extension of Time to file objections to the Court's February 25, 2020 Recommendation. (Docs. 20, 21). Thereafter, he timely filed his objections. (Doc. 22). Finally, the events and facts alleged by Plaintiff are not based on “widespread evidence that he did not personally experience.” DeJesus v. Lewis, 14 F.4th 1182, 1205 (11th Cir. 2021).
Applying the standards in Holt, it presently appears that the essential facts and legal doctrines in this case are ascertainable by Plaintiff without the assistance of court-appointed legal counsel, and that Plaintiff has not shown the existence of exceptional circumstances. See also DeJesus, 14 F.4th at 1204-06. 2
The Court, on its own motion, will consider assisting Plaintiff in securing legal counsel if and when it becomes apparent that legal assistance is required in order to avoid prejudice to his rights. It is not apparent that court-appointed counsel is required at this point. Accordingly, Plaintiff's request construed as a Motion to Appoint Counsel (Doc. 47) is DENIED.
RECOMMENDATION
The Court does not recite Plaintiff's factual allegations because the Court previously set forth Plaintiff's allegations in its January 12, 2022 Recommendation. (Doc. 43). Further, the Supervisor Defendants' Motion to Dismiss does not address the factual allegations made by Plaintiff.
In the Court's initial review of the Complaint, the Court permitted Plaintiff's Eighth Amendment excessive force claims against the Supervisory Defendants to proceed as well as an Eighth Amendment claim for excessive force against Defendant Ford to proceed. (Doc. 6). Both Defendant Ford and the Supervisory Defendants moved for summary judgment. On January 12, 2022, the Court entered a Recommendation recommending that summary judgment be granted in favor of Defendant Ford and that summary judgment be denied as to the Supervisory Defendants. (Doc. 43). The Supervisory Defendants filed an objection to that Recommendation (Doc. 44), and on February 23, 2022, the District Judge accepted and adopted the Recommendation over that objection (Doc. 48).
Prior to the District Judge entering the Order accepting and adopting the Recommendation, the Supervisory Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41 for Plaintiff's alleged failure to prosecute his claims. (Doc. 45). After being notified of his rights and obligations in responding to the Motion to Dismiss (Doc. 46), Plaintiff filed a Response to the Motion to Dismiss (Doc. 47). 3
Discussion
The Supervisory Defendants filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41. (Doc. 45-1). Under Rule 41(b), a district court has the authority “to dismiss actions for failure to comply with local rules.” Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993). However, the penalty of dismissal is so “drastic” that “a district court may dismiss a case with prejudice only where ‘there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.'” Id. (first quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); and then citing McKelvey v. AT&T Techs. Inc., 789 F.2d 1518, 1520 (11th Cir. 1986)). “Mere delay will not suffice; ‘[a] finding of such extreme circumstances necessary to support the sanction of dismissal must, at a minimum, be based on evidence of willful delay; simple negligence does not warrant dismissal.'” Id. (alteration in original) (citing McKelvey, 789 F.2d at 1520). The “severe sanction of dismissal . . . should be imposed ‘only in the face of a clear record of delay or contumacious conduct by the plaintiff.'” McKelvey, 789 F.2d at 1520 (quoting Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir. 1980)).
The Supervisory Defendants allege that Plaintiff was “informed by this Court of his duty to prosecute his claims at the outset of this action, and then he also was informed by this Court of his obligation to respond to [Defendants'] motions for summary judgment within 30 days from the date the motions were served upon him.” (Doc. 45-1, pp. 2-3). The Supervisory Defendants argue that, by failing to respond to the two Motions for Summary Judgment, Plaintiff has failed to prosecute his claim. Id. at 3. In support thereof, the Supervisory Defendants highlight language from the Clerk's notice to Plaintiff of his rights and obligations in responding to Defendants' Motions for Summary Judgment as well as language from the Court's Order granting Plaintiff an extension of time in which to file his responses to Defendants' Motions for Summary Judgment, 4 in which the Court reminded Plaintiff of his ongoing obligation to timely respond to any and all motions in the future. Id. at 1-2.
As an initial matter, the Court notes that the language cited by the Supervisory Defendants does not suggest that Plaintiff was required to respond to the Motions for Summary Judgment. Rather, the Clerk's notice stated, “[t]he claims you assert in your pleadings may be dismissed without a trial if you do not respond to the motion.” (Docs. 37, 40) (emphasis added). The Supervisory Defendants further highlighted the equivocal nature of the Court's warning by alleging Plaintiff “was warned that failure to respond to the motions for summary judgment might result in the dismissal of his claims.” (Doc. 45-1, p. 3) (emphasis added). Further, the Court's reminder to Plaintiff regarding timeliness was addressed to Plaintiff's failure to timely seek an extension of time to respond prior to the expiration of his time to respond. (Doc. 42) (noting that Plaintiff's Motion for an Extension of Time to File a Response was untimely).
In his Response, Plaintiff alleges that he was hindered in his ability to respond in a timely fashion by his limited access to the law library resulting from the Covid-19 pandemic. (Doc. 47, p. 2). Plaintiff's Response suggests that his failure to respond was significantly less than that required to show “evidence of willful delay” to support the dismissal of an action for failure to prosecute a claim. McKelvey, 789 F.2d at 1520 (citation omitted). Nor does Plaintiff's Response suggest “contumacious conduct” on the part of Plaintiff where he alleged that he had reduced access to the law library which impacted his ability to respond in a timely fashion. Id. (citation omitted).
Plaintiff's diligence in prosecuting his claim supports these conclusions. Plaintiff timely filed a Motion to Amend following Defendants' Answer. (Docs. 17, 19). Plaintiff timely filed a Motion for Extension of Time to file objections to the Court's February 25, 2020 5 Recommendation. (Docs. 20, 21). Plaintiff timely filed his objections. (Doc. 22). Thereafter, for the reasons discussed, infra, Plaintiff was not required to respond to any filing.
Nothing within the Federal Rules of Civil Procedure imposes a duty or obligation upon litigants to respond to motions for summary judgment. On the contrary, District Courts are precluded from awarding default summary judgment based solely on the fact that the opposing party failed to respond to the motion. United States v. One Piece of Real Property Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (“Thus, the district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.”) (citing Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988)). To the extent that litigants may read the Local Rules as providing for default summary judgment where the motion for summary judgment is unopposed, that reading is incorrect. Id. at 1102 (“Finally, local rules cannot provide that summary judgment by default is appropriate.”). Accordingly, Plaintiff was not required to respond to the Motions for Summary Judgment.
Finally, the Eleventh Circuit Court of Appeals noted, in the context of default judgments, that “defaults are seen with disfavor because of the strong policy of determining cases on their merits.” Fla. Physician's Ins. Co., Inc. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (citations omitted). That same policy should apply here. After considering the Supervisory Defendants' Motion for Summary Judgment and finding that summary judgment was inappropriate because genuine disputes of material facts existed, the Supervisory Defendants seek in essence a default judgment in their favor, without the Court's final consideration of the merits of Plaintiff's claim against them. Such an outcome is disfavored in the Eleventh Circuit.
Plaintiff was not required to respond to the Motions for Summary Judgment. Further, 6 nothing in the record suggests that Plaintiff has engaged in willful delay or contumacious conduct. Accordingly, the Court finds that the “drastic” penalty of dismissal, with or without prejudice, is inappropriate. Kilgo, 983 F.2d at 192 (citation omitted). The Court recommends that the Supervisory Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41 be denied.
Conclusion
Therefore, for the above stated reasons, it is RECOMMENDED that the Supervisory Defendants' Motion to Dismiss (Doc. 45) be DENIED. Should this Recommendation be adopted, this case would be ready for trial.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED, 7