Thomas v. Montgomery County Board of Education , 169 F. App'x 562 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-10885 ELEVENTH CIRCUIT
MARCH 2, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00094-CV-N
ARRINGTON 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 and in his official capacity as Superintendent,
ERICA TATUM,
in her individual and official capacity,
JOHN W. GREEN, III,
in his individual and official capacity,
KAY LAMMON,
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)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Arrington 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.1 After Plaintiff failed to appear at the first scheduled
1
On 11 March 2004, the magistrate judge ordered Plaintiff to file an amended complaint by 26
March 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 motion to recuse the magistrate and
a motion to stay the proceedings. Those motions were denied by order dated 24 June 2004; Plaintiff
was allowed 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. The magistrate judge also ordered Plaintiff three times to file a statement setting
forth the relationship between his case and another pending case filed by Albert Thomas. Plaintiff
responded finally to the third order with a statement that read “Relationship: family status.”
2
conference2, Plaintiff was advised specifically that his personal appearance at the
next conference was mandatory: 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 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, but Plaintiff only alleged improprieties on the part
of the magistrate: the objections failed to respond to, or challenge, the magistrate’s
2
Plaintiff’s mother did appear at the first scheduled hearing. Because Plaintiff is not a minor and
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.
3
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 the sua sponte dismissal of a complaint for failure to prosecute
for abuse of discretion.3 McKelvey v. AT&T Tech., Inc., 789 F.2d 1518, 1520
(11th Cir. 1986). “The court’s power to dismiss is an inherent aspect of its
authority to enforce its orders and insure prompt disposition of lawsuits.” Goforth
v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). But dismissal for failure to
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 (11th Cir. 1995); simple negligence does not
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;
3
Plaintiff filed a motion for reconsideration before the district court; reconsideration was denied.
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 (11th Cir. 2004),
“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 (5th Cir. 1980) (internal quotation and citation omitted), at
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.
4
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 (11th Cir. 1999); see also Fed.R.Civ.P. 41(b).
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
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.
We have considered other arguments advanced by Plaintiff and find them to
be without merit.4
4
To the extent that Plaintiff is appealing the denial of his motions for appointment of counsel and
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
5
AFFIRMED.
constitutional right to appointment of counsel.” See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.
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 (11th Cir. 2001). Plaintiff’s
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.
6