United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT
the Court are Defendants' Motion for Judgment on the
Pleadings (Dkt. No. 40); and Motion to Dismiss (Dkt. No. 41).
Plaintiff Justin Scott, who is proceeding pro se, has failed
to file a response to either motion. The District Court
referred the motions to the undersigned Magistrate Judge for
a report and recommendation pursuant to 28 U.S.C.
§636(b) and Rule 1(c) of Appendix C of the Local Rules.
Scott brings this excessive force case against the City of
Austin and Officer Gregory White based on allegations that
White used excessive force in effectuating a false arrest,
falsely imprisoned him, and violated his Due Process rights,
all in violation of 42 U.S.C. §§ 1983 and 1988. He
sues the City of Austin pursuant to the municipal liability
doctrine articulated in Monell v. Dept. of Social
Services, 436 U.S. 658, 691 (1978).
who is homeless, alleges that on February 20, 2015, he was
approached by White and questioned about another individual
White was looking for (an African-American female-Scott is a
caucasian male). Scott alleges that in the process of this
interrogation, White suddenly and without provocation grabbed
him, punched him multiple times, and employed his Taser.
Scott was arrested and charged with assault on a public
servant, resisting arrest, and taking a weapon from an
officer. After the arrest, Scott was then taken to University
Medical Center, Brackenridge for the treatment of injuries
received in the course of his arrest. On August 18, 2015, all
of the criminal charges filed against Scott were dismissed by
District Judge David Wahlberg.
case was originally filed by counsel. But ten months after it
was filed, Scott's counsel moved to withdraw. After a
hearing on the motion, Judge Pitman concluded that
“Plaintiff [Scott] and Movants [his attorneys] agreed
that it would be best to permit Movants to withdraw.
Plaintiff advised the Court that he would proceed with the
case pro se at this time. Plaintiff was advised that
the Scheduling Order, (Dkt. 31), will remain in place absent
a motion to modify the order.” Dkt. No. 39. That same
day, the Defendants filed a Rule 12(c) Motion for Judgment on
the Pleadings, asking the Court to dismiss the case based
because: (1) the independent intermediary doctrine insulated
White from unreasonable search/seizure, false
arrest/imprisonment, and due process claims; (2) Scott failed
to show a constitutional injury or causation for an excessive
force claim; (3) White had qualified immunity; and (4) the
City was not liable under Monell. White's
response was due 14 days later. He, however, failed to file
any response. Several weeks later, on December 8, 2017,
Defendants filed their Motion to Dismiss, noting that Scott
had failed to respond to the prior motion, and further had
“failed to respond or in any way contact defense
counsel since the October 19th telephone conference, and all
written communications have gone unanswered.” Dkt. No.
41 at 2. A month has passed since the filing of the motion to
dismiss, and Scott has not responded to that motion as well.
Local Rules for this Court state:
A response to a dispositive motion shall be filed not later
than 14 days after the filing of the motion. A response to a
nondispositive motion shall be filed not later than 7 days
after the filing of the motion. If there is no response filed
within the time period prescribed by this rule, the court
may grant the motion as unopposed.
Rule CV-7(e)(2) (emphasis added). The record reflects that
Defendants served Scott with copies of the two motions at the
address he listed with the Court. Scott has failed to file a
response to either motion within the applicable time frame.
On that ground alone, under the Local Rules the Court could
grant the motion to dismiss as unopposed.
Scott has failed to prosecute his case. A district court may
dismiss a plaintiff's claims sua sponte pursuant to
either Federal Rule of Civil Procedure 41(b) or the
court's inherent authority to manage its docket. Link
v. Wabash R.R. Co., 370 U.S. 626 (1962). In particular,
Rule 41(b) allows for the involuntary dismissal of a
plaintiff's claims where he has failed to prosecute those
claims, comply with the Federal Rules of Civil Procedure or
local rules, or follow a court order. Fed.R.Civ.P. 41(b). A
district court's “power to dismiss is an inherent
aspect of its authority to enforce its orders and ensure
prompt disposition of lawsuits.” Brown v.
Tallahassee Police Dep't, 205 Fed.Appx.
802, 802 (11th Cir. 2006) (quoting Jones v. Graham,
709 F.2d 1457, 1458 (11th Cir. 1983)). Though the Court does
not favor dismissing a case on something other than the
merits of the claims, it is left with little choice when it
cannot communicate with the party who filed the suit. The
only other option is to allow the case to pend endlessly,
which prejudices the Defendants' rights to have the
issues raised in the suit adjudicated. Since October 2017,
Scott has failed to respond to communications from the
Defendants' attorney, and has failed to file responses to
two motions to dismiss. In light of these circumstances, the
undersigned recommends that the District Court grant
Defendants' Motion to Dismiss (Dkt. No. 41) without
prejudice as unopposed, and deny the Motion for Judgment on
the Pleadings (Dkt. No. 40) as moot.
undersigned RECOMMENDS that the District
Court GRANT Defendants' Motion to
Dismiss (Dkt. No. 41) WITHOUT PREJUDICE and
DENY Defendants' Motion for Judgment on
the Pleadings (Dkt. No. 40) AS MOOT. The