John J. Wilson, Jr. v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13558
Non-Argument Calendar
____________________
JOHN J. WILSON, JR.,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-23173-MGC
____________________
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2 Opinion of the Court 20-13558
Before J ORDAN , BRANCH and DUBINA , Circuit Judges.
PER CURIAM:
Petitioner/Appellant John Wilson, Jr., a Florida inmate pro-
ceeding
pro se, appeals the district court’s dismissal with prejudice
of his 28 U.S.C. § 2254 petition for failure to comply with court
orders. Wilson argues that he is falsely imprisoned due to consti-
tutional deficiencies that occurred during his trial. Having read the
parties’ briefs and reviewed the record, we affirm the district
court’s order dismissing with prejudice Wilson’s petition.
I.
We review for an abuse of discretion a district court's dis-
missal for failure to comply with the rules of a court.
Zocaras v.
Castro, 465 F.3d 479, 483 (11th Cir. 2006). “Discretion means that
the district court has a range of choice, and its decision will not be
disturbed as long as it stays within that range and is not influenced
by any mistake of law.”
Id. (internal quotation marks omitted).
“While dismissal is an extraordinary remedy, dismissal upon disre-
gard 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).
A party who fails to object to a factual or legal finding in a
magistrate judge’s report and recommendation (“R&R”) waives
the right to challenge that finding on appeal, if the party was in-
formed of the time for objecting and the consequences on appeal
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20-13558 Opinion of the Court 3
for failing to object. 11th Cir. R. 3-1. Objections to a magistrate
judge’s R&R are to be made within 14 days. Fed. R. Civ. P.
72(b). When a party fails to object timely, we may review a party’s
claims for plain error. 11th Cir. R. 3-1.
II.
“When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment,
he is deemed to have abandoned any challenge of that ground, and
it follows that the judgment is due to be affirmed.”
Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). An
appellant also abandons a claim when he raises it for the first time
in his reply brief.
See id. at 683.
Pro se pleadings are held to a less stringent standard than
formal pleadings drafted by lawyers and will be liberally construed.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014).
Nevertheless,
pro se litigants are required to comply with applica-
ble procedural rules.
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007). Further, the leniency afforded
pro se litigants with lib-
eral construction “does not give a court license to serve as
de facto
counsel for a party, or to rewrite an otherwise deficient pleading in
order to sustain an action.”
Campbell, 760 F.3d at 1168-69.
A district court may recharacterize a
pro se litigant’s motion
when the label attached to the motion does not match the sub-
stance of the claims or would result in an unnecessary dismissal.
Castro v. United States, 540 U.S. 375, 381-82, 124 S. Ct. 786, 791-92
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4 Opinion of the Court 20-13558
(2003). When a district court uses its power to recharacterize a
pro
se motion, however, it must warn the
pro se litigant that it is re-
characterizing his motion into a habeas petition, that this charac-
terization likely will limit the litigant’s ability to file successive pe-
titions, and that the litigant needs to file an amended petition or
withdraw his motion.
Id. at 383, 124 S. Ct. at 792.
Under Fed. R. Civ. P. 41(b), a district court may dismiss a
claim if the plaintiff fails to comply with a court order. Fed. R. Civ.
P. 41(b). A district court also may dismiss a claim
sua sponte based
on its inherent power to manage its docket.
Betty K Agencies, Ltd.
v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). However,
the discretion afforded under Rule 41(b) is not unlimited, and a dis-
trict court may only dismiss a case with prejudice as a last resort in
exceptional circumstances.
Zocaras, 465 F.3d at 483.
A district court abuses its discretion when it
sua sponte dis-
misses a civil action with prejudice where (1) the court fails to make
a finding that the plaintiff acted willfully or that a lesser sanction
would not have sufficed, and (2) nothing in the record supports a
finding that the plaintiff acted willfully or that a lesser sanction
would not have sufficed.
Betty K Agencies, 432 F.3d at 1338-42.
While we have remanded cases in which there has been no finding
on the efficacy of sanctions less severe than dismissal, we have also
affirmed dismissals of cases under Rule 41(b) when the record sup-
ported an implicit finding that any lesser sanctions would not serve
the interests of justice.
Mingo v. Sugar Cane Growers Co-op. of
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20-13558 Opinion of the Court 5
Fla., 864 F.2d 101, 102-03 (11th Cir. 1989);
Goforth v. Owens, 766
F.2d 1533, 1535 (11th Cir. 1985).
III.
The record here demonstrates that Wilson has abandoned
any argument that the district court improperly dismissed his §
2254 petition. Wilson failed to object timely to the R&R and, ac-
cordingly, has waived his ability to appeal the findings in the R&R.
See Fed. R. Civ. P. 72(b). The district court granted Wilson an ex-
tension to object to the R&R, but he failed to file his objections by
that date. Wilson also has abandoned on appeal any argument that
the district court abused its discretion in dismissing his § 2254 peti-
tion on procedural grounds.
See Sapuppo, 739 F.3d at 680. Wilson
did not address, in his initial brief, whether the district court abused
its discretion when it dismissed his § 2254 petition for failure to
comply with filing requirements, and although he did minimally
raise the issue in his reply brief, that is not enough to place the issue
before this Court for review.
See Sapuppo, 739 F.3d at 683.
Moreover, we conclude that the district court did not abuse
its discretion by dismissing Wilson’s petition with prejudice. The
district court was within its authority to dismiss the petition for
failure to comply with its clear orders that the petition contain
claims supported by short, plain factual statements, within the des-
ignated page limits.
See Fed. R. Civ. P. 41(b);
Betty K Agencies, 432
F.3d at 1337. Wilson’s first petition did not clearly state his claims
and was over 400 pages in length. The district court also warned
Wilson several times that his petition must comply with the court’s
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6 Opinion of the Court 20-13558
orders setting out the page limit and minimum requirements for
petitions, or his petition would be dismissed.
See Moon, 863 F.2d
at 837. Even after receiving these warnings, Wilson continued to
file amended petitions that exceeded the page limitations, referred
the district court to exhibits, and did not clearly articulate his argu-
ments. While the district court did not expressly find that other
sanctions were not sufficient, the sheer number of warnings and
“final chances” given to Wilson suggest that he willfully failed to
comply with court orders and that dismissal with prejudice was the
only proper sanction.
See Betty K Agencies, 432 F.3d at 1338-42;
Goforth, 766 F.2d at 1535. Therefore, we conclude that the district
court did not abuse its discretion in dismissing Wilson’s § 2254 pe-
tition with prejudice. Accordingly, based on the aforementioned
reasons, we affirm the district court’s judgment of dismissal with
prejudice.
AFFIRMED.
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