Woodyard v. Mitchell et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DRAPER FRANK WOODYARD, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 24-00288-JB-B
*
MICHAEL MITCHELL, et al., 	*
*
Defendants. 	*
REPORT AND RECOMMENDATION
This action is before the Court on review.1 	Plaintiff Draper
Frank 	Woodyard, 	an 	Alabama 	prison 	inmate 	proceeding 	without 	an
attorney, filed a complaint seeking relief under 42 U.S.C. § 1983
in August 2024. 	(Doc. 1). 	Woodyard subsequently filed an amended
complaint and a motion to proceed without prepayment of fees dated
October 24, 2024. 	(Docs. 5, 6). 	On November 25, 2024, the Court
denied 	Woodyard’s 	motion 	to 	proceed 	without 	prepayment 	of 	fees
without 	prejudice 	because 	it 	did 	not 	include 	a 	certified 	copy 	of
his prison trust fund account statement. 	(Doc. 7 at 1-3). 	On the
same 	day, 	Woodyard 	alerted 	the 	Court 	by 	email 	that 	he 	had 	been
released from prison.2
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)(R).
2 Resulting online searches confirmed that Woodyard was no longer
in the custody of the Alabama Department of Corrections.
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In 	an 	order 	dated 	December 	20, 	2024, 	the 	Court 	noted 	that
Woodyard 	had 	not 	paid 	any 	portion 	of 	the 	filing 	fee 	for 	this
action, and that Woodyard’s pre-release motion to proceed without
prepayment 	of 	fees 	had 	been 	denied 	because 	it 	did 	not 	include 	a
certified 	copy 	of 	Woodyard’s 	prison 	trust 	fund 	account 	statement
as 	required 	by 	28 	U.S.C. 	§ 	1915(a)(2). 	(Doc. 	9 	at 	7-8). 	Thus,
the 	Court 	ordered 	Woodyard 	to 	either 	pay 	the 	$405 	filing 	and
administrative fees for a civil action or to file a new motion to
proceed without prepayment of fees on or before January 21, 2025.
(Id. at 8-9).
The Court informed Woodyard that if he elected to file a new
motion 	to 	proceed 	without 	prepayment 	of 	fees, 	he 	needed 	to
“carefully and completely respond to each question” in the Court’s
standard 	IFP 	motion 	form 	and 	“include 	information 	that 	conveys 	a
complete picture of his finances and explains how he is providing
for 	life’s 	basic 	necessities, 	including 	food, 	clothing, 	and
shelter.” 	(Id. 	at 	8). 	The 	Court 	also 	explained 	at 	length 	why
“Woodyard’s release from incarceration during the pendency of this
lawsuit” did “not relieve him of his filing and payment obligations
under 	28 	U.S.C. 	§ 	1915.” 	(Id. 	at 	2-8). 	Specifically, 	the 	Court
informed Woodyard that he was still required to submit a certified
copy 	of 	his 	prison 	trust 	fund 	account 	statement 	pursuant 	to 	28
U.S.C. § 1915(a)(2), so that the Court could determine whether he
was 	required 	to 	pay 	an 	initial 	partial 	filing 	fee 	as 	calculated
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according to the formula set forth in § 1915(b)(1), as well as any
additional amounts calculated pursuant to § 1915(b)(2) on the basis
of any monthly income credited to his prison account from the time
he 	filed 	this 	action 	to 	the 	time 	he 	was 	released 	from
incarceration. 	(Id. at 5-7). 	Thus, the Court directed Woodyard
to 	include 	with 	his 	new 	motion 	to 	proceed 	without 	prepayment 	of
fees 	a 	certified 	copy 	of 	his 	prison 	trust 	fund 	account 	statement
reflecting all transactions in his inmate account from March 2024
through the time of his release. 	(Id. at 8-9).
In 	response 	to 	the 	Court’s 	order, 	Woodyard 	filed 	a 	second
motion to proceed without prepayment of fees on January 13, 2025.
(Doc. 	10). 	The 	motion 	indicated 	that 	Woodyard 	was 	incarcerated
from 	May 	17, 	2024 	until 	November 	13, 	2024, 	and 	that 	he 	was 	last
employed in April 2024, making $400 per week as a dishwasher. 	(Id.
at 2, 6). 	However, despite reporting no assets or current income,
Woodyard failed to explain in the motion how he was providing for
his 	basic 	living 	needs 	such 	as 	food, 	clothing, 	and 	shelter 	as
directed. 	(Id. at 2-3). 	Woodyard also failed to comply with the
Court’s directive to include a certified copy of his prison account
statement 	for 	the 	applicable 	period. 	Instead, 	Woodyard 	repeated
his 	earlier 	assertions 	that 	ADOC 	officials 	“wouldn’t 	verify” 	his
account 	information 	while 	he 	was 	incarcerated 	(see 	id. 	at 	6),
despite this Court’s repeated findings that Woodyard was not being
refused access to the courts but was instead failing to follow the
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proper procedures to obtain a certified copy of his prison account
statement. 	Notwithstanding 	Woodyard’s 	assertion, 	it 	was 	clear
from his motion that he had made no attempt to obtain a certified
copy 	of 	his 	prison 	account 	statement 	in 	response 	to 	the 	Court’s
order dated December 20, 2024.
In 	an 	order 	dated 	January 	15, 	2025, 	the 	Court 	denied
Woodyard’s 	second 	motion 	to 	proceed 	without 	prepayment 	of 	fees
without 	prejudice 	because 	it 	did 	not 	comply 	with 	the 	Court’s
directives and failed to convey a clear and complete depiction of
his 	present 	financial 	situation. 	(Doc. 	11 	at 	4). 	The 	Court
ordered Woodyard to either pay the $405 filing and administrative
fees for a civil action or to file a new motion to proceed without
prepayment 	of 	fees 	on 	or 	before 	February 	5, 	2025. 	(Id. 	at 	4-5).
The Court reiterated that if Woodyard elected to file a new motion
to proceed without prepayment of fees, he needed to “carefully and
completely 	respond 	to 	each 	question 	in 	the 	IFP 	motion 	form” 	and
“include 	information 	that 	conveys 	a 	complete 	picture 	of 	his
finances 	and 	explains 	how 	he 	is 	providing 	for 	life’s 	basic
necessities, 	including 	food, 	clothing, 	and 	shelter.” 	(Id. 	at 	4
(emphasis in original)). 	The Court also reiterated that Woodyard’s
new motion to proceed without prepayment of fees needed to include
a 	certified 	copy 	of 	his 	prison 	trust 	fund 	account 	statement
reflecting all transactions in his inmate account from March 2024
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through 	the 	time 	of 	his 	release.3 	(Id. 	at 	4-5). 	The 	Court
cautioned 	Woodyard 	that 	failure 	to 	fully 	comply 	with 	the 	order
within 	the 	required 	time 	would 	result 	in 	a 	recommendation 	that
this action be dismissed for failure to prosecute and to obey the
Court’s orders, and that there would be no further warnings. 	(Id.
at 	5). 	The 	Court’s 	order 	dated 	January 	15, 	2025, 	and 	the 	IFP
motion form accompanying it, were mailed to Woodyard at the address
listed in his most recent filing, and they have not been returned
to the Court as undeliverable. 	However, to date, Woodyard has not
filed 	a 	new 	motion 	to 	proceed 	without 	prepayment 	of 	fees 	in
compliance with this Court’s order dated January 15, 2025, despite
being directed to do so no later than February 5, 2025. 	Woodyard
has not requested additional time within which to comply with the
Court’s 	order, 	he 	has 	not 	indicated 	that 	he 	is 	unable 	to 	comply
with 	the 	Court’s 	order, 	and 	he 	has 	not 	provided 	any 	explanation
for his failure to timely comply with the Court’s order.
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.
3 	The 	Court 	noted 	Woodyard’s 	allegation 	that 	he 	was 	only
incarcerated 	from 	May 	17, 	2024 	until 	November 	13, 	2024, 	and 	it
clarified that to the extent Woodyard’s incarceration began after
March 2024, he needed to file a prison account statement reflecting
all 	transactions 	in 	his 	inmate 	account 	from 	the 	beginning 	of 	his
incarceration through the time of his release. 	(Doc. 11 at 5 n.2).
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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, 	failure 	to 	comply 	with 	the 	Federal 	Rules 	of 	Civil
Procedure, or failure to 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, Woodyard has made no apparent effort to
obey the Court’s order directing him to either pay the $405 filing
and 	administrative 	fees 	or 	to 	file 	a 	complying 	motion 	to 	proceed
without prepayment of fees. 	Nor has Woodyard explained his failure
to 	timely 	comply 	with 	the 	Court’s 	most 	recent 	order, 	indicated
that he is unable to comply, or sought additional time within which
to 	comply. 	Woodyard’s 	lack 	of 	response 	to 	the 	Court’s 	order
suggests that he has lost interest in and abandoned the prosecution
of this action.
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In 	light 	of 	Woodyard’s 	failure 	to 	prosecute 	this 	action 	and
failure 	to 	obey 	the 	Court’s 	orders, 	it 	is 	recommended 	that 	this
action be DISMISSED without prejudice pursuant to Rule 41(b) and/or
this Court’s inherent authority, as it appears no lesser sanction
will suffice to induce his compliance.4
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
4 	The 	Court 	notes 	that 	Woodyard 	appears 	to 	complain 	of 	acts 	that
occurred in September 2023. 	(See Doc. 5 at 4-5). 	In Alabama, the
statute 	of 	limitations 	for 	filing 	a 	§ 	1983 	action 	is 	two 	years.
Jones 	v. 	Preuit 	& 	Mauldin, 	876 	F.2d 	1480, 	1483 	(11th 	Cir. 	1989)
(en banc). 	Therefore, under the circumstances, dismissal of this
action without prejudice would not be tantamount to dismissal with
prejudice, 	because 	Woodyard 	would 	have 	the 	ability 	to 	refile 	his
claims prior to the expiration of the statute of limitations.
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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 	done 	by 	the 	Magistrate 	Judge
is not specific.
DONE this 11th day of February, 2025.
/S/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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