Powe v. Clipper et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PEDRO LEE POWE, )
)
Plaintiff, )
)
v. ) CIV. A. NO. 25-184-TFM-MU
)
BYRON CLIPPER and )
ARERIA CLIPPER, )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Pedro Lee Powe, proceeding without the assistance of an attorney, filed a
complaint (Doc. 1) along with a motion to proceed without prepayment of fees (Doc. 2).
This case has been referred to the undersigned Magistrate Judge for appropriate action
pursuant to 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR 72(a)(2)(R). (Doc. 3). Upon review
of this action’s proceedings, it is RECOMMENDED that this action be DISMISSED
without prejudice for Plaintiff’s failure to prosecute and to comply with the Court’s order.
On May 9, 2025, Plaintiff was instructed to refile his motion to proceed without
prepayment of fees to include additional information so that the Court could determine his
financial status or to pay the filing fee. (Doc. 4). Plaintiff filed a new motion to proceed
without prepayment of fees on May 19, 2025 (Doc. 5), which the Court granted. (Doc. 6).
At that time, the Court also conducted an initial review of Plaintiff’s complaint and found
deficiencies preventing service of the complaint. (Id.). Accordingly, the Court entered an
order explaining to Plaintiff the problems noted with his complaint and instructed him on
how to cure the deficiencies. (Id.). Plaintiff was further ordered to file an amended
complaint by June 30, 2025, because the Court could not discern the basis of the claims
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that Plaintiff was attempting to assert, the basis upon which this Court has jurisdiction to
hear his complaint, or the relief sought by Plaintiff. (Id.). Plaintiff was warned that failure
to file an amended complaint addressing and curing the noted deficiencies would result
in a recommendation that this action be dismissed. (Id.).
This Court’s order, setting a compliance deadline of June 30, 2025, has not been
returned to the Court by postal officials. To date, Plaintiff has not filed an amended
complaint nor communicated with the Court in any manner.
A “court may dismiss a claim if the plaintiff fails to prosecute it or comply with a
court order.” Equity Lifestyle Prop., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d
1232, 1240 (11th Cir. 2009). The court's authority to dismiss an action sua sponte for lack
of prosecution is considered a fundamental power of the court. Link v. Wabash R.R., 370
U.S. 626, 630 (1962). Courts are vested with the inherent authority “to manage their own
affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31.
Moreover, “Rule 41(b) authorizes a district court to dismiss a complaint for failure to
prosecute or failure to comply with a court order or the federal rules.” Saint Vil v. Perimeter
Mortg. Funding Corp., 715 F. App'x 912, 915 (11th Cir. 2017) (internal quotation marks
omitted)). Accord Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.
2005) (recognizing the two sources of a court's authority to sua sponte dismiss an action
are its inherent powers and Rule 41(b) of the Federal Rules of Civil Procedure).
Due to Plaintiff's failure to comply with the Court's order and to prosecute this
action, it is recommended that this action be dismissed without prejudice, as no lesser
sanction will suffice to address Plaintiff's willful conduct. Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989) (dismissal for disregarding an order after a litigant has been
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forewarned is generally not an abuse of discretion), cert. denied, 493 U.S. 863 (1989);
see Frith v. Curry, 812 F. App'x 933, 934-35 (11th Cir. 2020) (affirming an action's
dismissal when an inmate, who had been warned that failure to comply would result in
his action's dismissal for failure to prosecute, did not respond to the court's order and did
not pay the partial filing fee even though he filed his signed consent form); Freeze v. Sec'y,
Dep't of Children & Families, 825 F. App'x 606, 610 (11th Cir. 2020) (affirming the
dismissal without prejudice of the complaint for failure to follow court orders to amend his
complaint).
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D.ALA. GenLR 72(c). The parties should note that under 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.” 11th Cir. R. 3-1. To be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify
the place in the Magistrate Judge’s report and recommendation where the disputed
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determination is found. An objection that merely incorporates by reference or refers to the
briefing before the Magistrate Judge is not specific.
DONE this the 10th day of July, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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