FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 2, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10886

Non-Argument Calendar

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D.C. Docket No. 04-00061-CV-D-N

ALBERT THOMAS,

 

Plaintiff-Appellant, 

versus

MONTGOMERY COUNTY BOARD OF EDUCATION,

CLINTON CARTER, Individual And In His Official

Capacity As Superintendent,

JOY MYRICK, Individual And In His Official

Capacity As Director of Special Education,

ED RICHARDSON, Individual,

DR. JOSEPH B. MORTON, In His Official Capacity

As Superintendent,

ERICA TATUM, In Her Individual And Official Capacity, et al.,

 Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Alabama 

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(March 2, 2006)
 On 6 February 2004, the magistrate judge ordered Plaintiff to file an amended complaint by 16 1

February 2004, because his filed complaint contained no facts to support his claims. The order

directed Plaintiff to set his claims out in separate counts stating for each count the defendant or

defendants against whom the count is brought, the legal theory upon which the count rests, the facts

supporting the claims, and the relief sought. Plaintiff responded by filing a “Notice of Appeal” of

(i) the order to amend, and (ii) an order denying without prejudice Plaintiff’s motion for appointment

of counsel. The district court treated the “Notice of Appeal” as objections to these pretrial

nondispositive matters; the objections were overruled. Again on 16 February 2004, Plaintiff was

ordered to file his amended complaint by 23 February 2004; and yet again on 11 March 2004,

Plaintiff was ordered to file his amended complaint by 22 March 2004 or face possible dismissal.

Plaintiff responded by filing motions to recuse the magistrate and to stay the proceedings. Those

motions were denied by order dated 24 June 2004; Plaintiff was allowed yet another opportunity to

file an amended complaint. Plaintiff’s amended complaint, filed 7 July 2004, set out some facts but

otherwise ignored substantially the magistrate judge’s order about form and content. 

2

Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Albert Thomas, proceeding pro se, appeals the dismissal

of his complaint against the Montgomery County Board of Education and named

individual defendants, in which Plaintiff alleged violations of state and federal law

protecting the rights of handicapped children. No reversible error has been

shown; we affirm.

The magistrate judge recommended that Plaintiff’s complaint be dismissed

for failure to prosecute the action. The magistrate judge reached this conclusion

after Plaintiff twice failed to appear for scheduled conferences and otherwise

ignored orders of the court. After Plaintiff failed to appear at the first scheduled 1
 Plaintiff’s mother did appear at the first scheduled hearing. Because Plaintiff is not a minor and 2

his mother is not a lawyer, the magistrate judge informed Plaintiff’s mother that she could not

represent her son or proceed with the action on his behalf.

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conference , Plaintiff was advised specifically that his personal appearance at the 2

next conference was mandatory and that his failure to appear would result in a

recommendation for dismissal of his complaint with prejudice. Plaintiff was also

advised specifically that the purpose of the conference was “to provide a

reasonable opportunity for Plaintiff to show any cause why this action should not

be dismissed.” And, the magistrate judge encouraged Plaintiff to contact the

Alabama State Bar and the Montgomery County Bar where Plaintiff could be

referred to attorneys with whom he could discuss -- possibly without charge -- the

merits of his case. Plaintiff failed again to appear at the scheduled conference and

offered no excuse or explanation for his refusal to appear.

The magistrate judge concluded that Plaintiff had engaged in a clear pattern

of willful contempt and recommended his action be dismissed with prejudice

based on his failure to prosecute. The magistrate judge stated expressly that lesser

sanctions had been considered but would not suffice to remedy Plaintiff’s failure

to participate in the prosecution of his case. Plaintiff filed objections to the

magistrate’s recommendation that alleged improprieties on the part of the

magistrate; the objections failed to respond to, or to challenge, the magistrate’s
 Plaintiff filed a motion for reconsideration before the district court; reconsideration was denied. 3

Plaintiff appealed the order denying his motion for reconsideration. Although we have jurisdiction

to review only those judgments or orders that the notice of appeal specifies, either expressly or

implicitly, see Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 785 (11 Cir. 2004), th

“an appeal is not lost if a mistake is made in designating the judgment appealed from where it is

clear that the overriding intent was effectively to appeal” the original judgment, Kicklighter v. Nails

by Jannee, Inc. 616 F.2d 734, 738-39 n.1 (5 Cir. 1980) (internal quotation and citation omitted), at th

least where appeal of that judgment is timely. Because Plaintiff is a pro se litigant, and because it

appears he intended to appeal the order of dismissal as well as some non-final orders, we will

construe Plaintiff’s notice of appeal to include such orders.

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factual findings, including the determination that Plaintiff’s acts constituted

willful contempt. The district court adopted the magistrate’s recommendation and

dismissed Plaintiff’s case with prejudice.

We review for abuse of discretion the sua sponte dismissal of a complaint

for failure to prosecute. McKelvey v. AT&T Tech., Inc., 789 F.2d 1518, 1520

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(11 Cir. 1986). “The court’s power to dismiss is an inherent aspect of its

th

authority to enforce its orders and insure prompt disposition of lawsuits.” Goforth

v. Owens, 766 F.2d 1533, 1535 (11 Cir. 1985). But dismissal for failure to th

prosecute is a severe “sanction of last resort that is to be utilized only in extreme

situations,” see Morewitz v. West of Eng. Ship Owners Mut. Prot. and Indem.

Ass’n (Lux.), 62 F.3d 1356, 1366 (11 Cir. 1995); simple negligence does not

th

warrant dismissal. See McKelvey, 789 F.2d at 1520. A district court may, in the

proper exercise of its discretion, dismiss with prejudice a complaint for failure to

prosecute upon (1) concluding a clear record of delay or willful contempt exists;
 In his reply brief, Appellant for the first time contends that he was intimidated by the prospect

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of appearing unrepresented against Appellees who were represented by counsel; he claims a panic

attack prevented his attendance at the conference. Appellant included no mention of his alleged

incapacity in his objections to the magistrate judge’s dismissal recommendation. Appellant’s belated

attempted explanation fails to show that the magistrate judge abused her discretion.

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and (2) making an implicit or explicit finding that lesser sanctions would not

suffice. See, e.g., Gratton v. Great American Communications, 178 F.3d 1373,

1374 (11 Cir. 1999); see also Fed.R.Civ.P. 41(b). th

We cannot say that an abuse of discretion has been shown. Plaintiff was

warned repeatedly that his failure to comply with the court’s orders could result in

dismissal of his case. The last such warning even included guidance on possible

sources of free legal assistance. In the face of these warnings, Plaintiff, without

explanation, failed to appear for a mandatory conference. The magistrate judge’s 4

finding (to which Plaintiff never objected) that Plaintiff engaged in a “clear pattern

of willful contempt” is supported by the record. And the magistrate judge noted

expressly that lesser sanctions were considered but would not remedy Plaintiff’s

intransigence. In the light of Plaintiff’s absences at scheduled hearings and other

failures to comply with orders, together with the magistrate’s finding that no lesser

sanction would suffice, we see no abuse of discretion in the dismissal of Plaintiff’s

complaint for lack of prosecution.
 To the extent that Plaintiff is appealing the denial of his motions for appointment of counsel and 5

for recusal of the magistrate judge, these issues have not been properly preserved for appeal. And,

even if raised properly, no abuse of discretion has been shown. “A plaintiff in a civil case has no

constitutional right to appointment of counsel.” See Bass v. Perrin, 170 F.3d 1312, 1320 (11 Cir. th

1999). Where, as here, Plaintiff’s claims appear to involve no “exceptional circumstances,” the

district court commits no abuse of discretion by denying a motion for appointment of counsel. See

id. And because no objective, disinterested and fully informed observer would entertain a serious

doubt about the magistrate or district court’s impartiality in this case, the record discloses no basis

for a recusal motion. See Byrne v. Nezhot, 261 F.3d 1075, 1101 (11 Cir. 2001). Plaintiff’s th

argument that the magistrate judge and district court acted without jurisdiction after the date on

which the district court liberally construed his first “notice of appeal” as an objection to the

magistrate’s order also is without merit. Plaintiff was attempting to appeal a magistrate’s order to

this Court; we have no jurisdiction over such appeals. See 28 U.S.C. §§ 1291 and 1292. Such

“appeals” are subject to district court review. See Fed.R.Civ.P. 72; 28 U.S.C. § 636(b)(1). We see

no error in the district court’s upholding of the magistrate judge’s resolution of these nondispositive

matters and, in any case, Plaintiff filed no notice of appeal of that decision of the district court. 

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We have considered other arguments advanced by Plaintiff and find them to

be without merit.5

AFFIRMED.