Opinion
4:21-CV-00163-CDL-MSH
02-25-2022
ISHMAEL K WHITAKER, Plaintiff, v. JOHN DOES 1 through 3, Defendants.
RECOMMENDATION OF DISMISSAL
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Presently pending before the Court is a Complaint seeking relief pursuant to 42 U.S.C. § 1983 filed by pro se Plaintiff Ishmael K. Whitaker, an inmate who is currently incarcerated at the Muscogee County Jail in Columbus, Georgia (ECF No. 1). On November 1, 2021, Plaintiff's motion for leave to proceed in forma pauperis was granted, and Plaintiff was ordered to pay an initial partial filing fee in the amount of $4.02. At the same time, Plaintiff was ordered to supplement his Complaint to (1) explain how the named Defendants in this case acted under color of state law, and (2) provide a name for each Defendant or a description of each Defendant sufficient to identify that person for service of process. Plaintiff was given twenty-one (21) days to comply, and he was warned that the failure to fully and timely comply with the Court's orders and instructions could result in the dismissal of his Complaint. See generally Order, Nov. 1, 2021, ECF No. 5.
The time for compliance passed, and though Plaintiff paid the required initial partial filing fee, he did not supplement his Complaint as directed. Plaintiff was therefore ordered to respond and show cause why his lawsuit should not be dismissed for failing to fully and timely comply with the Court's orders and instructions. Plaintiff was given fourteen (14) days to respond, and he was again warned that the failure to fully and timely comply with the Court's orders and instructions could result in the dismissal of this action. See generally Order, Dec. 2, 2021, ECF No. 7.
Plaintiff subsequently filed two motions for extensions of time to comply with the Court's orders. In these motions, Plaintiff explained that he required additional time to supplement his Complaint “because he suffered a mental breakdown, ” and he also requested discovery consisting of “documentary, video & audio evidence” that would allow him to “produce the names and descriptions of everybody involved in this case.” Mot. Ext. Time 2, ECF No. 12; see also Mot. Discovery 1, ECF No. 10. The Court granted Plaintiff's first two motions for extensions of time (ECF Nos. 12, 14) but denied Plaintiff's third request (ECF No. 16). Despite these extensions, Plaintiff has failed to supplement his Complaint as ordered. As Plaintiff has been repeatedly warned, his Complaint is therefore subject to dismissal for failing to comply with the Court's orders and instructions. See Fed. R. Civ. P. 41; see also Brown v. Tallahassee Police Dep't, 205 Fed.Appx. 802, 802 (11th Cir. 2006) (per curiam) (“The court may dismiss an action sua sponte under Rule 41(b) for failure to prosecute or failure to obey a court order.”) (citing Lopez v. Aransas Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
To be clear, the undersigned is not recommending dismissal of this case because Plaintiff has failed to provide the Court with the name of each Doe Defendant named in this action. It can certainly be difficult for a pro se prisoner to ascertain the identity of a potential defendant, and Plaintiff's pending motions for discovery seek assistance from the Court in doing so. See, e.g., Bishop v. McLaughlin, 5:11-CV-107 MTT, 2012 WL 1029499, at *3 (M.D. Ga. Mar. 26, 2012) (permitting prisoner to join Doe defendant where “[l]imited discovery should reveal Defendant Jane or John Doe's identity given the specificity of the Plaintiff's motion”). But Plaintiff was also ordered to provide facts supporting his allegations that Defendants were state actors. Plaintiff has made no effort to comply with these instructions, and this failure to comply supports dismissal pursuant to Federal Rule of Civil Procedure 41. Furthermore, as was also previously explained to Plaintiff, Plaintiff cannot state a § 1983 claim absent some facts supporting his contention that Defendants are state actors. Plaintiff's Complaint could thus also be dismissed pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), which require the Court to dismiss claims that are frivolous, malicious, or fail to state a claim upon which relief may be granted.
For these reasons, it is RECOMMENDED that this action be DISMISSED without prejudice and that Plaintiff's pending motions (ECF Nos. 10, 11) be DENIED as moot.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Clay D. Land, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED