[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12063

Non-Argument Calendar

________________________

D.C. Docket No. 5:18-cv-00008-MCR-GRJ

DUONG THANH HO, 

 Plaintiff - Appellant,

versus

DEDEE S. COSTELLO, 

Circuit Court Judge,

ELIJAH SMILEY,

Circuit Court Judge,

JENNIFER ALANE HAWKINS,

Assistant State Attorney Bay County,

CHRISTA DIVINEY,

Assistant Attorney,

MICHAEL T. D’ERRICO,

State Licensed Forensic Psychologist, et al.,

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(December 12, 2018)

Case: 18-12063 Date Filed: 12/12/2018 Page: 1 of 5 
2

Before ROSENBAUM, JILL PRYOR, and HULL, Circuit Judges.

PER CURIAM: 

Duong Ho, a prisoner proceeding pro se, appeals the district court’s sua sponte

dismissal of his 42 U.S.C. § 1983 action for failing to comply with a court order and 

to prosecute his case. After careful review, we now affirm.

Ho filed his pro se § 1983 complaint in the district court. But though he was 

a prisoner at the time, he did not file his complaint on the court-approved civil-rights 

form to be used by prisoners in § 1983 actions. His complaint was also 66 pages 

long, substantially exceeding the usual 25-page limit for a pro se complaint in the 

Northern District of Florida. Upon initial screening under 28 U.S.C. § 1915(e), the 

magistrate judge explained that Ho’s complaint named multiple defendants but did 

not adequately state what each defendant did or did not do, in support of each claim 

and which factual allegations linked each defendant to each claim. For these reasons,

by order dated January 8, 2018, the magistrate judge ordered Ho to file an amended 

complaint by February 5, 2018. He expressly warned, “Failure to comply with this 

order within the allotted time, or to show cause why Plaintiff is unable to comply, 

will result in a recommendation to the district judge that the case be dismissed 

without further notice for failure to prosecute and for failure to follow a Court order.”

February 5 came and went without any action whatsoever by Ho. So on 

February 14, 2018, the magistrate judge issued a report and recommendation 

Case: 18-12063 Date Filed: 12/12/2018 Page: 2 of 5 
3

recommending dismissal of the case, pursuant to the court’s inherent power to 

control its docket, for failure to comply with a court order and for failure to 

prosecute.

Nearly three weeks later, on behalf of Ho, Pamela R. Nesmith, apparently 

Ho’s mother, filed an objection to the February 14 report and recommendation. But 

there is no indication in the record that Nesmith is an attorney. So on March 16, the 

district court issued an order prohibiting Nesmith from appearing pro se on behalf 

of Ho and stayed the case for 30 days to allow Ho to retain legal counsel. The district 

court specifically cautioned, “If legal counsel does not file an appearance within that 

time, the stay will be lifted and the Court will consider the magistrate judge’s 

pending Report and Recommendation.”

Thirty days passed with no action by Ho. Therefore, on April 19, the district 

court issued an order lifting the stay. The order further explained that since no 

attorney had appeared on Ho’s behalf in the designated period, the stay was lifted, 

and the case would proceed with Ho proceeding pro se. But since Ho himself neither 

filed an amended complaint nor an objection the magistrate judge’s February 14 

report and recommendation, the district court adopted the February 14 report and 

recommendation and dismissed the case without prejudice for failure to comply with 

a Court order and for failure to prosecute.

Case: 18-12063 Date Filed: 12/12/2018 Page: 3 of 5 
4

We review for abuse of discretion a district court’s decision to dismiss a 

complaint for failure to follow a court order. Foudy v. Indian River County Sheriff’s 

Office, 845 F.3d 1117, 1122 (11th Cir. 2017). Federal Rule of Civil Procedure 41(b) 

provides that “[i]f the plaintiff fails to prosecute or comply with the [Rules of Civil 

Procedure] or a court order, a defendant may move to dismiss the action or any claim 

against it.” However, a local rule “should not serve as a basis for dismissing a pro 

se civil rights complaint where . . . there is nothing to indicate plaintiff ever was 

made aware of [the local rule] prior to dismissal.” Mitchell v. Inman, 682 F.2d 886, 

887 (11th Cir. 1982). Although the plain language of Rule 41(b) indicates that a 

defendant may move for dismissal, a district court may sua sponte dismiss a case 

under the authority of either Rule 41(b) or the court’s inherent power to manage its 

docket. Betty K Agencies, Ltd v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). 

The district court did not abuse its discretion by dismissing Ho’s complaint. 

The magistrate judge’s January 8 order expressly informed Ho of the deficiencies in 

his complaint and the rules that he needed to follow in filing an amended complaint. 

It further ordered Ho to file his amended complaint by February 5, 2018, and advised 

that failure to do so could result in dismissal. Yet Ho did not file an amended 

complaint. 

Then, after the magistrate judge’s February 14, 2018, report and 

recommendation recommending dismissal of the case, Ho did not file any 

Case: 18-12063 Date Filed: 12/12/2018 Page: 4 of 5 
5

objections; only Nesmith did. And when the district judge issued an order explaining 

that Nesmith could not represent Ho and staying the case for 30 days to allow Ho to 

find counsel if he so desired, Ho again did nothing—even though the district court’s 

order specifically stated that his failure to take further action would result in the 

district court’s consideration of the report and recommendation recommending 

dismissal of the case. 

As we have noted, all of the magistrate judge’s and district court’s orders 

clearly instructed Ho what to do and what was expected of him. But Ho did not 

comply with these orders. Thus, the district court’s dismissal of Ho’s complaint was 

reasonable. Foudy, 845 F.3d 1117, at 1126 (holding that dismissal of plaintiff’s 

complaint for failing to explain their grounds for joinder in a complaint naming 

multiple parties despite court order to do so “[was] entirely appropriate.”). Finally, 

we note that the dismissal was without prejudice. So had he chosen not to appeal, 

nothing would have prevented Ho from refiling his case. For all of these reasons,

we find no abuse of discretion and affirm the dismissal.

AFFIRMED.

Case: 18-12063 Date Filed: 12/12/2018 Page: 5 of 5