Luker v. BC-911 Center et al, No. 1:2021cv00451 - Document 16 (S.D. Ala. 2022)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING 14 REPORT AND RECOMMENDATION; this action is DISMISSED without prejudice for failure to obey the Courts orders. However, the Court will allow the Plaintiff a final chance to either pay the $402.00 filin g fee or submit a motion for leave to proceed in forma pauperis. The deadline to comply is 02/18/2022. The Clerk of Court is DIRECTED to send a copy of the Courts form motion to proceed in forma pauperis along with a copy of this Memorandum Opinion and Order. (Copy of IFP and Order mailed to Plf on 01/27/2022) Signed by District Judge Terry F. Moorer on 01/27/2022. (cjr)

Download PDF

Luker v. BC-911 Center et al Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CLARENCE LUKER, AIS # 00313583, Plaintiff, vs. BC-911 CENTER AND LISA DUNBAR Defendants. ) ) ) ) ) ) ) ) ) ) CIV. ACT. NO. 1:21-cv-451-TFM-N MEMORANDUM OPINION AND ORDER On December 10, 2021, the Magistrate Judge entered a report and recommendation which recommends this action be dismissed without prejudice for failure to prosecute and to comply with the court’s orders. See Doc. 14. On December 20, 2021, Plaintiff filed a document entitled “Defendants Notice of Right to File Objections Motion to Amend.” See Doc. 15. The Court construes the document as Plaintiff’s objections to the Report and Recommendation. Fed. R. Civ. P. 41(b) authorizes dismissal of a complaint for failure to prosecute or failure to comply with a court order or the federal rules. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a dismissal may be done on motion of the defendant or sua sponte as an inherent power of the court. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “[D]ismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.” Vil v. Perimeter Mortg. Funding Corp., 715 F. App’x 912, 915 (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). “[E]ven a non-lawyer should realize the peril to [his] case, when [he] . . . ignores numerous notices” and fails to comply with court orders. Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164, 1169 (5th Cir. 1980); see also Moon, 863 F.2d at 837 (As a general rule, where a litigant has been forewarned, Page 1 of 3 Dockets.Justia.com dismissal for failure to obey a court order is not an abuse of discretion.). Therefore, the Court finds it appropriate to exercise its “inherent power” to “dismiss [Plaintiff’s claims] sua sponte for lack of prosecution.” Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); see also Betty K Agencies, Ltd., 432 F.3d at 1337 (describing the judicial power to dismiss sua sponte for failure to comply with court orders). Plaintiff filed the complaint on October 13, 2021. See Doc. 1. On October 22, 2021, the Magistrate Judge entered an order directing Plaintiff to file the $402 filing fee or file a motion to proceed in forma pauperis. See Doc. 4. Though Plaintiff has filed a flurry of various motions related to the case, Luker still failed to comply with the Court’s order to pay the filing fee or a motion to proceed in forma pauperis. Even after the Report and Recommendation was entered, Luker still did not comply. Reviewing the objections Luker filed, the Court finds no reference to the Report and Recommendation except for the word “objections” in the title along with a request to add defendants. None of this addresses the substance of the recommendation to dismiss for failure to pay the filing fee and obey the court’s order. Accordingly, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge is ADOPTED and this action is DISMISSED without prejudice for failure to obey the Court’s orders. However, instead of immediately entering a final judgment in accordance with Fed. R. Civ. P. 58, the Court will allow the Plaintiff one final chance to comply with the Court’s order to either pay the $402.00 filing fee or submit a motion for leave to proceed in forma pauperis. The deadline to comply is February 18, 2022. The Clerk of Court is DIRECTED to send a copy of the Court’s Page 2 of 3 form motion to proceed in forma pauperis along with a copy of this Memorandum Opinion and Order. Plaintiff Luker is advised that this is the final opportunity to comply with the Court’s order in this case. Failure to comply by the deadline will result in the Court entering the Final Judgment in accordance with this Memorandum Opinion and Order. DONE and ORDERED this 27th day of January, 2022. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE Page 3 of 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.