Morton v. DuBose et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL DEWAYNE MORTON, 	*
BOP Register Number 14125-003, 	*
*
Plaintiff, 	*
* CIVIL ACTION NO. 24-00432-TFM-B
vs. 	*
*
KRISTI DUBOSE, et al., 	*
*
Defendants. 	*
REPORT AND RECOMMENDATION
This matter is before the Court on review.1 	On November 14,
2024,2 	Plaintiff 	Michael 	DeWayne 	Morton, 	a 	federal 	prisoner
proceeding without an attorney, commenced this action by filing a
complaint on this Court’s form for an inmate action under 42 U.S.C.
§ 1983. 	(Doc. 1). 	When he initiated this action, Morton neither
paid 	the 	filing 	fee 	nor 	filed 	a 	motion 	to 	proceed 	without
1 This action has been referred to the undersigned Magistrate Judge
for 	consideration 	and 	disposition 	or 	recommendation 	on 	all
pretrial 	matters 	as 	may 	be 	appropriate 	pursuant 	to 	28 	U.S.C. 	§
636(b)(1). 	(Doc. 4).
2 	“Under 	the 	‘prison 	mailbox 	rule,’ 	a 	pro 	se 	prisoner’s 	court
filing 	is 	deemed 	filed 	on 	the 	date 	it 	is 	delivered 	to 	prison
authorities for mailing.” 	Williams v. McNeil, 557 F.3d 1287, 1290
n.2 (11th Cir. 2009); see Garvey v. Vaughn, 993 F.2d 776, 783 (11th
Cir. 	1993) 	(holding 	that 	the 	mailbox 	rule 	applies 	to 	pro 	se
prisoner 	complaints 	in 	§ 	1983 	cases). 	“Absent 	evidence 	to 	the
contrary, 	[courts] 	assume 	that 	a 	prisoner 	delivered 	a 	filing 	to
prison 	authorities 	on 	the 	date 	that 	he 	signed 	it.” 	Jeffries 	v.
United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (per curiam).
Morton’s 	complaint 	indicates 	that 	it 	was 	signed 	and 	delivered 	to
prison authorities for mailing on November 14, 2024. 	(See Doc. 1
at 7-8).
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prepayment 	of 	fees 	as 	required.3 	Accordingly, 	in 	an 	order 	dated
December 2, 2024, the undersigned ordered Morton to either pay the
$405.00 	filing 	and 	administrative 	fees 	for 	a 	civil 	action 	on 	or
before 	January 	3, 	2024, 	or 	to 	file 	a 	motion 	to 	proceed 	without
prepayment 	of 	fees 	on 	or 	before 	January 	3, 	2025. 	(Doc. 	3 	at 	1).
The 	undersigned 	cautioned 	Morton 	that 	failure 	to 	comply 	with 	the
Court’s 	order 	within 	the 	prescribed 	time 	would 	result 	in 	a
recommendation 	that 	this 	action 	be 	dismissed 	for 	failure 	to
prosecute and failure to obey the Court’s order. 	(Id. at 2).4
The Court’s order dated December 2, 2024, and the IFP motion
form 	accompanying 	it, 	were 	mailed 	to 	Morton 	at 	FCI 	Terre 	Haute,
where 	he 	has 	been 	incarcerated 	since 	he 	commenced 	this 	action.
However, to date, Morton has neither paid the filing fee nor filed
a 	motion 	to 	proceed 	without 	prepayment 	of 	fees, 	despite 	being
ordered 	to 	do 	one 	of 	those 	things 	no 	later 	than 	January 	3, 	2025.
Morton 	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
3 In his complaint, Morton stated: “I will be paying my own filing
fees, 	in 	two 	weeks 	from 	inmate 	account 	system, 	or 	once 	I 	am
released by clemency.” 	(Doc. 1 at 7).
4 The undersigned directed the Clerk of Court to send Morton a copy
of 	this 	Court’s 	standard 	form 	for 	a 	motion 	to 	proceed 	without
prepayment 	of 	fees 	in 	a 	prisoner 	action 	for 	his 	use. 	(Doc. 	3 	at
2).
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order. 	Additionally, the Court’s order and accompanying IFP motion
form have not been returned to the Court as undeliverable, and an
online 	search 	reveals 	that 	Morton 	is 	still 	incarcerated 	at 	FCI
Terre Haute, where the order and IFP motion form were sent.
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, 	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).
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As 	noted 	previously, 	Morton 	has 	made 	no 	apparent 	effort 	to
comply 	with 	the 	Court’s 	order 	directing 	him 	to 	either 	pay 	the
filing fee or file a motion to proceed without prepayment of fees.
Nor 	has 	Morton 	explained 	his 	failure 	to 	timely 	comply 	with 	the
Court’s 	order, 	indicated 	that 	he 	is 	unable 	to 	comply, 	or 	sought
additional time within which to comply. 	Morton’s lack of response
to 	the 	Court’s 	order 	suggests 	that 	he 	has 	lost 	interest 	in 	and
abandoned 	the 	prosecution 	of 	this 	action. 	In 	light 	of 	Morton’s
willful 	failure 	to 	prosecute 	this 	action 	and 	failure 	to 	obey 	the
Court’s 	order, 	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.
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 	done 	by 	the 	Magistrate 	Judge
is not specific.
DONE this 13th day of January, 2025.
/S/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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