Esposito v. Orange Beech Police et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL ESPOSITO, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 24-00266-KD-B
*
KIMBERLEY NEUNER, 	*
*
Defendant. 	*
REPORT AND RECOMMENDATION
This matter is before the Court on review.1 	Plaintiff Michael
Esposito 	(“Esposito”), 	who 	is 	proceeding 	without 	an 	attorney,
commenced this civil action on August 1, 2024.2 	Esposito’s initial
complaint 	named 	as 	defendants 	the 	Orange 	Beach 	Police 	Department
(“OBPD”) 	and 	OBPD 	Officer 	Kimberley 	Neuner 	(“Officer 	Neuner”).
(Doc. 	1 	at 	2). 	In 	the 	complaint, 	Esposito 	asserted 	that 	he 	was
being 	“systemic[ally] 	profil[ed]” 	while 	driving 	a 	taxicab 	in
Orange 	Beach 	and 	had 	been 	pulled 	over 	“about 	8 	times” 	within 	the
last year, receiving “3 tickets 1 warning and a few officers just
asking me questions.” 	(Id. at 3-4).
1 This 	case 	was 	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)(S).
2 Esposito 	filed 	a 	motion 	to 	proceed 	without 	prepayment 	of 	fees
(Doc. 2), but the Court denied the motion and ordered Esposito to
pay 	the 	filing 	fee. 	(Doc. 	5). 	Esposito 	paid 	the 	$405.00 	filing
and administrative fees for a civil action on September 23, 2024.
(Doc. 6).
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In 	an 	order 	dated 	September 	26, 	2024, 	the 	Court 	found 	that
Esposito’s 	initial 	complaint 	failed 	to 	set 	forth 	any 	valid 	basis
for federal subject matter jurisdiction and failed to comply with
the basic pleading standards for a complaint in federal court, and
that 	OBPD 	was 	subject 	to 	dismissal 	as 	a 	defendant 	because 	it 	is
not 	a 	separate 	legal 	entity 	subject 	to 	suit. 	(Doc. 	7 	at 	2-10).
The Court struck Esposito’s initial complaint and granted him leave
to file an amended complaint that stated a valid basis for federal
subject 	matter 	jurisdiction 	and 	corrected 	the 	noted 	pleading
defects. 	(Id. at 10).3
In 	response 	to 	the 	Court’s 	order, 	Esposito 	filed 	an 	amended
complaint, 	which 	named 	Officer 	Neuner 	as 	the 	sole 	defendant 	and
purported 	to 	assert 	a 	claim 	under 	42 	U.S.C. 	§ 	1983 	based 	on 	the
allegation 	that 	Esposito 	was 	“being 	systemically 	profiled 	by 	the
police 	officers 	employed 	by 	the 	Orange 	Beach 	Police 	Department.”
(Doc. 8).
In 	an 	order 	dated 	December 	2, 	2024, 	the 	Court 	found 	that
3 To 	assist 	Esposito 	in 	drafting 	a 	complying 	amended 	complaint,
the Court informed him of the applicable pleading standards for a
complaint in federal court, including what is required to properly
allege jurisdiction, what is required to state a claim upon which
relief 	can 	be 	granted, 	and 	the 	requirements 	of 	Rules 	8 	and 	10 	of
the 	Federal 	Rules 	of 	Civil 	Procedure. 	(Doc. 	7 	at 	2-6, 	10-11).
The Court also directed the Clerk to send Esposito a copy of this
Court’s Pro Se Litigant Handbook and encouraged Esposito to review
the 	handbook 	carefully 	and 	utilize 	it 	in 	drafting 	his 	amended
complaint, so as to avoid repetition of his pleading errors. 	(Id.
at 12).
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Esposito’s 	amended 	complaint 	failed 	to 	meet 	federal 	pleading
standards. 	(Doc. 	9). 	In 	particular, 	the 	Court 	noted 	that 	the
amended complaint did not identify even a single act taken or not
taken by the defendant, it included no facts to support Esposito’s
conclusion that he was being systemically profiled, and it did not
specify 	any 	substantive 	statutory 	or 	constitutional 	basis 	for
Esposito’s 	§ 	1983 	claim. 	(Id. 	at 	6-7). 	Thus, 	the 	Court 	struck
the amended complaint and granted Esposito leave to file a second
amended complaint that addressed and corrected the noted pleading
deficiencies 	by 	January 	3, 	2025.4 	(Id. 	at 	7-8). 	The 	Court
cautioned Esposito that failure to file a second amended complaint
within the ordered time would result in a recommendation that this
action be dismissed. 	(Id. at 9-10).
To 	date, 	Esposito 	has 	not 	filed 	a 	second 	amended 	complaint,
despite 	being 	ordered 	to 	do 	so 	no 	later 	than 	January 	3, 	2025.
Esposito has not requested additional time within which to comply
with the Court’s repleading order, he has not indicated that he is
unable to file a second amended complaint, and he has provided no
explanation 	for 	his 	failure 	to 	timely 	file 	a 	second 	amended
complaint. 	Additionally, 	the 	docket 	reflects 	that 	none 	of 	the
4 	To 	assist 	Esposito 	in 	drafting 	a 	complying 	second 	amended
complaint, 	the 	Court 	again 	informed 	him 	of 	the 	general 	pleading
standards 	for 	a 	complaint 	in 	federal 	court, 	as 	well 	as 	what 	is
required to state a claim for relief under 42 U.S.C. § 1983. 	(Doc.
9 at 4-6, 8-9).
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orders 	or 	documents 	sent 	to 	Esposito 	in 	this 	case 	have 	been
returned to the Court as undeliverable.
A court “may sua sponte dismiss an action pursuant to Federal
Rule 	of 	Civil 	Procedure 	41(b) 	if 	the 	plaintiff 	fails 	to 	comply
with court rules or a court order.” 	Smith v. Bruster, 424 F. App’x
912, 	914 	(11th 	Cir. 	2011) 	(per 	curiam) 	(citing 	Fed. 	R. 	Civ. 	P.
41(b); 	Betty 	K 	Agencies, 	Ltd. 	v. 	M/V 	Monada, 	432 	F.3d 	1333, 	1337
(11th Cir. 2005)). 	“In addition to its power under Rule 41(b), a
court also has the inherent ability to dismiss a claim in light of
its authority to enforce its orders and provide for the efficient
disposition of litigation.” 	Zocaras v. Castro, 465 F.3d 479, 483
(11th 	Cir. 	2006) 	(citing 	Link 	v. 	Wabash 	R.R., 	370 	U.S. 	626, 	630–
31 	(1962)). 	To 	dismiss 	an 	action 	with 	prejudice 	for 	failure 	to
prosecute, 	comply 	with 	the 	Federal 	Rules 	of 	Civil 	Procedure, 	or
follow a court order, the court must find “a clear record of delay
or 	willful 	conduct 	and 	that 	lesser 	sanctions 	are 	inadequate 	to
correct such conduct.” 	Betty K Agencies, 432 F.3d at 1339. 	“While
dismissal is an extraordinary remedy, dismissal upon disregard of
an 	order, 	especially 	where 	the 	litigant 	has 	been 	forewarned,
generally 	is 	not 	an 	abuse 	of 	discretion.” 	Moon 	v. 	Newsome, 	863
F.2d 835, 837 (11th Cir. 1989).
As noted previously, Esposito has made no apparent attempt to
comply 	with 	the 	Court’s 	order 	directing 	him 	to 	file 	a 	second
amended 	complaint 	by 	January 	3, 	2025, 	despite 	the 	undersigned’s
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clear warning that his failure to file a second amended complaint
within that time would result in a recommendation that this action
be 	dismissed. 	Esposito 	has 	not 	explained 	his 	failure 	to 	comply
with the Court’s order, he has not indicated that he is unable to
comply, 	and 	he 	has 	not 	sought 	additional 	time 	within 	which 	to
comply. 	Esposito’s failure to take any action in response to the
Court’s most recent repleading order suggests that he has abandoned
the prosecution of this action. 	In light of Esposito’s failure to
prosecute 	this 	action 	and 	failure 	to 	obey 	this 	Court’s 	order 	by
timely 	filing 	a 	second 	amended 	complaint, 	it 	is 	recommended 	that
this action be DISMISSED without prejudice, as it appears no lesser
sanction 	will 	suffice 	to 	induce 	his 	compliance 	with 	the 	Court’s
directives.
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
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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.
In 	order 	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
determination is found. 	An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is
not specific.
DONE this 16th day of January, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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