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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GARY RESIL,

Plaintiff,

v. CASE NO. 4:11-cv-00314-RH-GRJ

JARED MILLER, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This case has been pending since June 28, 2011 without a viable complaint for

service. Despite Plaintiff having been granted more than ample time to amend his

complaint to prosecute this case, Plaintiff has failed to comply with the Court’s previous

orders and has failed to advance this case. Accordingly, for the reasons explained

below, the case should be dismissed for failure to prosecute and for failure to obey a

Court order.

DISCUSSION

 Plaintiff, proceeding, pro se, filed a civil rights complaint on a form utilized in the

United States District Court for the Western District of Louisiana. (Doc. 1.) At the time

Plaintiff filed his original complaint he was being held in custody in a detention center in

Waterproof, Louisiana. Plaintiff’s complaint concerns medical treatment he received 1

while incarcerated in the Wakulla County Jail. Because Plaintiff failed to utilize the form

used in this District and because of deficiencies in stating a claim for deliberate

Apparently, since that time Plaintiff has been released from custody. Plaintiff lists his current

1

address as an apartment in Miami, Florida.

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indifference, the Court entered an order advising Plaintiff of the deficiencies and

directing Plaintiff to file an amended complaint utilizing the Court’s form. (Doc. 3.)

Plaintiff was directed to file the amended complaint by July 29, 2011. Id. Plaintiff filed a

first amended complaint on the Court’s form on August 1, 2011. (Doc. 5.) 

The Court reviewed Plaintiff’s First Amended Complaint and determined that the

complaint was again deficient and that Plaintiff improperly had included the Wakulla

County Jail and Immigration and Customs Enforcement as defendants. The Court

therefore entered an order directing Plaintiff to file another amended complaint detailing

the connection of two of the Defendants to his claims and providing facts alleging the

conduct which Plaintiff contended demonstrates deliberate indifference and the date(s)

the alleged incident(s) occurred. (Doc. 13.) The Court separately entered a report and

recommendation, recommending that the Wakulla County Jail and ICE should be

dismissed. (Doc. 14.) On November 23, 2011 the Court accepted the report and

recommendation and dismissed the claims against the Wakulla County Jail and the

United States Immigration and Customs Enforcement. (Doc. 19.) 

Plaintiff filed a second amended complaint on November 9, 2011. (Doc. 16.)

Because the Second Amended Complaint failed to cure the deficiencies and again

failed to provide any details about the incident, the date of the incident or the conduct

that Plaintiff contends demonstrates deliberate indifference, the Court again entered an

order pointing out the deficiencies and provided Plaintiff with yet one more opportunity

to cure the deficiencies and file a further amended complaint. (Doc. 18.) Plaintiff was

directed to file the further amended complaint by December 2, 2011. 

Plaintiff failed to cure the deficiencies by filing a further amended complaint as

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directed on or before December 2, 2011. Rather than dismissing the case the Court

entered an order to show cause directing Plaintiff to show cause by January 20, 2012

why the case should not be dismissed for failing to amend his second amended

complaint by December 2, 2011. (Doc. 20.) Plaintiff has failed to respond to the Court’s

show cause order as directed, has failed to amend his second amended complaint and

otherwise has done nothing to advance this case for the past three months since filing

the second amended complaint.

 A trial court has inherent power to dismiss a case sua sponte for failure to

prosecute. Link v. Wabash Railroad, 370 U.S. 626 (1962); Eades v. Alabama Dept. of

Human Resources, 298 Fed. Appx. 862 (11th Cir. 2008) (district court has discretion to

dismiss case sua sponte where plaintiff has failed to comply with court orders and was

on notice that such failure may result in dismissal). Fed. R. Civ. P. 41(b) also

authorizes a district court to dismiss an action for failure to obey a court order. 

As detailed above despite the fact that this case has been pending since June

2011 Plaintiff has failed to file a complaint which states a cognizable claim for deliberate

indifference and since November 2011 has failed to amend his current complaint or

comply with the directives of this Court. The Court on at least several occasions pointed

out to Plaintiff the deficiencies in his claims and graciously provided Plaintiff with a

number of opportunities to cure the deficiencies. Plaintiff has failed to cure the

deficiencies and has failed to respond to the Court’s show cause order. 

Accordingly, it is respectfully RECOMMENDED that this case be DISMISSED

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without prejudice for failure to prosecute and for failure to obey an order of this Court.

IN CHAMBERS at Gainesville, Florida, this 24 day of January, 2012. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

.

Case No: 4:11-cv-00314-RH -GRJ

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