Attia v. Jackon et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:24-cv-00336-TFM-MU Doc#16 Filed 01/09/25 Pagelof4 PagelD#
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IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOEL BARTON ATTIA,
Plaintiff,
V. CIV. A. NO. 24-0336-TFM-MU

DAVID JACKSON, et al.,

eee OO Oe

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Joel Barton Attia, proceeding without an attorney, filed a complaint (Doc.
1) and amended complaint (Doc. 9) in this Court. This case was 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. 2).
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 pursuant to Federal Rule of Civil Procedure 41(b).

Because Plaintiff filed his complaint without paying the $405 filing and
administrative fees or filing a Motion to Proceed Without Prepayment of Fees (“IFP
motion”), the Court ordered Plaintiff to pay the $405 filing fee for this action or to
complete and file a motion to proceed without prepayment of fees on the Court’s form
by November 4, 2024. (Doc. 4). The Court informed Plaintiff that his motion to proceed
without prepayment of fees must include “a copy of his inmate account statement and a
certificate that must be signed by a prison official certifying his inmate account

statement.” (/d. at 1). The Court also warned Plaintiff that failure to comply with the

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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Court's order within the required time would result in the dismissal of this action. (Id.).
Thereafter, on October 25, 2024, Plaintiff filed a motion to proceed without prepayment
of fees, but it was incomplete. (See Doc. 10). Specifically, Plaintiff’s motion did not
include a copy of his inmate account statement containing all transactions made for the
6-month period immediately preceding the filing of the complaint, nor was it signed by a
prison official as required by 28 U.S.C. § 1915(a)(2). Accordingly, Plaintiff’s motion was
denied by order dated November 22, 2024. (Doc. 14).
The Court, however, gave Plaintiff a final chance to comply with the previous
order, once again ordering Plaintiff that he had until December 23, 2024 to “refile a
motion to proceed without prepayment of fees on this Court’s form, along with the
attached Certificate that must be signed by a prison official certifying his inmate account
statement for the 6-months prior to filing this action.” (Doc. 14 at 2). Plaintiff was again
warned that failure to comply with the Court’s order would result in entry of a
recommendation that Plaintiff be denied leave to proceed without prepayment of fees in
this action and that this action be dismissed without prejudice for failure to prosecute
and comply with the Court’s orders. (Id.). The order and the Court's IFP form were sent
to Plaintiff.
On December 15, 2024, Plaintiff filed a motion to proceed without prepayment of
fees. (See Doc. 15). The motion, however, is again incomplete. The motion still does
not contain a certificate signed by a prison official (found on page 5 of the Court’s form
motion), nor does the motion include a copy of Plaintiff’s inmate account statement.
(Id.). Without these statutorily required portions of the motion, the Court is unable to
determine whether Plaintiff qualifies to proceed in this action without the prepayment of
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fees. Moreover, because Plaintiff has repeatedly failed to submit a completed motion to
proceed without prepayment of fees, he has failed to comply with the Court’s orders.
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 continued failure to comply with the Court's orders and to
prosecute this action, it is RECOMMENDED that this action be DISMISSED without
prejudice. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (dismissal for
disregarding an order after a litigant has been 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
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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 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.” 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 the 7th day of January, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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