GREGORY J. KELLY, Magistrate Judge.
This cause came on for consideration without oral argument on the following motion filed herein:
The matter before the Court arises from a police officer's alleged unlawful search of Plaintiff's vehicle. On June 27, 2016, Plaintiff filed the operative complaint against Defendants (the "Complaint"). Doc. No. 23. In Count I of the Complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983 against Sergeant James Patton, a Holly Hill, Florida (the "City") police officer who performed an alleged unlawful search of Plaintiff's vehicle. Doc. No. 23 at 7-8. In Count II of the Complaint, Plaintiff asserts a claim against Stephen Aldrich, the City's police chief, under 42 U.S.C. § 1983. Id. at 8-10. Both claims assert that Defendants violated Plaintiff's Fourth Amendment right against false arrest and unlawful search and seizure. Id. at 3-10. Because Plaintiff sues Chief Aldrich in his official capacity, the Court interprets Count II as a claim against the City. See Fareed v. Hicks, 915 F.2d 1530, 1532 (11th Cir. 1990) (citations omitted) ("Where . . . a section 1983 plaintiff sues government employees (such as police officers) in their official capacities, the suit is in actuality against the government entity that the individuals represent"); Doc. No. 37 at 1 (citing same). Thus, the Court will refer to the City when addressing Plaintiff's claim against Chief Aldrich.
On July 11, 2016, the City moved to dismiss Count II (the "Motion to Dismiss"). Doc. No. 24. On July 22, 2016, Plaintiff filed an amended response to the Motion to Dismiss. Doc. No. 32. On August 19, 2016, Plaintiff's counsel filed an Unopposed Motion to Withdraw as Counsel, citing irreconcilable differences with Plaintiff (the "Motion to Withdraw"). Doc. No. 34. On August 29, 2016, the undersigned granted the Motion to Withdraw, permitting Plaintiff to proceed pro se. Doc. No. 35. The undersigned ordered that all future filings and papers in this case shall be served on Plaintiff at the Volusia County Jail (the "Jail"). Id. at 2. Plaintiff was also ordered to keep the Court and opposing counsel apprised of his current residential mailing address and immediately inform the Clerk, the Court, and opposing counsel via written notice should his address change. Id. at 3. The order also warned Plaintiff that "[a]s a pro se litigant, Plaintiff is subject to the same law and rules of court as litigants who are represented by counsel. . ." Id. at 2. On October 27, 2016, Plaintiff's counsel certified that copies of the aforementioned order and the then operative Case Management and Scheduling Order (Doc. No. 28) were provided to Plaintiff. Doc. No. 39.
On September 14, 2016, U.S. District Judge Gregory A. Presnell dismissed Count II with prejudice as to the alleged false arrest, but dismissed Count II without prejudice as to the alleged unlawful search (the "Order of Dismissal"). Doc. No. 37 at 10. The Order of Dismissal allowed Plaintiff to file an amended complaint as to the alleged unlawful search by September 29, 2016. Id. Plaintiff never filed an amended complaint as to the alleged unlawful search. On November, 11, 2016, Judge Presnell dismissed Count I with prejudice as to the alleged false arrest, but did not dismiss Count I as to the alleged unlawful search. Doc. No. 40 at 8.
On January 25, 2017, Plaintiff filed a Motion to Reopen the Case (the "Motion"). Doc. No. 42. In the Motion, Plaintiff states that he never received the Order of Dismissal and was unaware of it until January 2017, when a family member appraised him of the status of the case. Id. at 1-2. Plaintiff also states that the Jail has failed to provide him a copy of the Federal Rules of Civil Procedure, denying him his right of access to the federal courts. Id. at 1. Plaintiff requests the Court grant leave to reopen the case as to Count II of the Complaint. Id. at 2. On February 8, 2017, the City filed its response to the Motion (the "Response"). Doc. No. 47. In the Response, the City argues that Plaintiff's request is meritless because: 1) Judge Presnell's order became final when Plaintiff failed to timely file an amended complaint; and 2) Plaintiff failed to demonstrate excusable neglect. Id. at 4-7. On February 22, 2017, U.S. District Judge Roy B. Dalton, Jr. issued an Amended Case Management and Scheduling Order (the "Scheduling Order") setting the following pertinent deadlines:
Doc. No. 50 at 3.
There are two issues central to the Court's determination of the Motion. First, the Court must decide whether the Order of Dismissal is a final order. Second, if the Order of Dismissal is final, the Court must decide whether Plaintiff is entitled to relief from the order. See Fed. R. Civ. P. 60(b) (providing grounds for relief from a final judgment, order, or proceeding). The Court will address each in turn.
The Eleventh Circuit has held that "where an order dismisses a complaint with leave to amend within a specified period, the order becomes final . . . when the time period allowed for amendment expires." Briehler v. City of Miami, 926 F.2d 1001, 1002 (11th Cir. 1991). Here, the Order of Dismissal states that Plaintiff had until September 29, 2016 to file an amended complaint as to the alleged unlawful search. Doc. No. 37 at 10. Because Plaintiff failed to file an amended complaint by the aforementioned deadline, the Order of Dismissal became final on September 29, 2016. Once Plaintiff's opportunity to file an amended complaint expired, the Court loses its power to grant further extensions unless Plaintiff shows excusable neglect under Federal Rule of Civil Procedure 60(b)(1). See Fed. R. Civ. P. 60(b)(1). See also Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1132-33 (11th Cir. 1994) (noting that when a dismissal order became final, "the court lost all its prejudgment powers to grant any more extensions"). Thus, because Plaintiff failed to file an amended complaint before September 29, 2016, the Order of Dismissal is a final order, and the Court cannot provide any relief unless Plaintiff shows he is entitled to relief under Federal Rule of Civil Procedure 60(b).
Plaintiff requests that the Court grant leave to reopen the case as to Count II because: 1) the Jail has denied him access to the Federal Rules of Civil Procedure, and thus is being denied his right of access to the federal courts; and 2) he never received the Order of Dismissal. Doc. No. 42 at 1-2. The City argues that: 1) Plaintiff's lack of access to the Federal Rules of Civil Procedure does not amount to excusable neglect; and 2) Plaintiff's argument that he never received the Order of Dismissal "is either untrue or is insufficient to constitute excusable neglect. . ." Doc. No. 47 at 6. In support of its second argument, the City cites to documents Plaintiff filed proximate to and after the time Judge Presnell issued the Order of Dismissal. Doc. No. 47 at 6.
Federal Rule of Civil Procedure 60(b)(1) permits a court to vacate a final order as a result of a party's "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). "The determination of what constitutes excusable neglect is generally an equitable one, taking into account the totality of circumstances surrounding the party's omission." Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007) (citations omitted). The moving party bears the burden of establishing entitlement to relief under Rule 60(b)(1). Florida Physicians Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993).
Plaintiff states that the Jail has refused to provide Plaintiff with a copy of the Federal Rules of Civil Procedure and thus denied his right to access to the courts. Doc. No. 42 at 1. Plaintiff cites to the Supreme Court's decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), in support of his argument. Doc. No. 42 at 1. The Eleventh Circuit in Wilson v. Blankenship, 163 F.3d 1284, 1290-91 (11th Cir. 1998), summarized the applicable law when a prisoner alleges that his or her institution prevented access to the courts:
Id. (emphasis added). Thus, Wilson stands for the proposition that a prisoner has no inherent right of access to legal books. Id. Furthermore, should a prisoner argue that he or she was denied access to the courts, he or she must provide evidence of an actual injury resulting from such conduct. Id.
Here, Plaintiff has failed to show facts warranting relief under Rule 60(b)(1) because there is no evidence showing that his failure to amend the Complaint was the result of his being denied access to the Federal Rules of Civil Procedure. As stated above, Plaintiff argues that he never received the Order of Dismissal and was
Plaintiff also states that he never received the Order of Dismissal. Doc. No. 42 at 1. The City argues that Plaintiff's argument "is either untrue or is insufficient to constitute excusable neglect. . ." Doc. No. 47 at 6. The City also states:
Id. (emphasis added). Thus, the City argues that Plaintiff's argument is untrue and insufficient given the fact that he responded to another motion filed earlier in this case, and later made filings in other cases in this Court. Id.
Determining excusable neglect from a Plaintiff's failure to file an amended complaint before a Court-ordered deadline is a discretionary decision. Santillana v. Florida State Court System, No. 6:09-cv-2095-Orl-19KRS, 2010 WL 1532337, at * 2 (M.D. Fla. Apr. 16, 2010). When making such a determination, the Court must consider: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74 (1993). See also Santillana, 2010 WL 1532337 at * 2. Of the four aforementioned factors, "[p]rimary importance should be accorded to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration." Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (citing Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir.1996)). The Court will consider each factor in turn.
The Court recognizes that the Scheduling Order sets the discovery and mediation deadlines on July 3, 2017 and a dispositive motions deadline on August 1, 2017. Doc. No. 50 at 3. Nevertheless, after considering the first two Pioneer factors, the undersigned finds that reopening the case would neither unduly prejudice the City nor impact the Court's management of this case for three reasons. First, the City does not argue that a reopening of Count II would be prejudicial. Doc. No. 47 at 5-7. Instead, the City only argues that Plaintiff has failed to show excusable neglect. Id.
Second, the undersigned finds that there is sufficient time to engage in discovery and prepare for a potential trial. The City and Sergeant Patton are closely related parties and are represented by the same counsel. Furthermore, should Count II be reopened, Defendants would share the same outstanding claims, namely allegations of an unlawful search. Thus, reopening Count II would not cause any delay or complication in discovery amongst the parties. Furthermore, there would be no rush complete additional discovery before the discovery deadline, since the parties have been engaging in discovery as to the unlawful search claim asserted against Sergeant Patton.
Third, while Plaintiff did not file the Motion until four months after the Order of Dismissal, he did file the Motion twenty-four days after being made aware of it. Doc. No. 42 at 2. Thus, there was no gross delay once Plaintiff was made aware of the Order of Dismissal.
With regard to the final two Pioneer factors, the undersigned finds the reason for Plaintiff's delay was well within his control, as the undersigned had warned Plaintiff that "[a]s a pro se litigant, Plaintiff is subject to the same law and rules of court as litigants who are represented by counsel. . ." Doc. No. 35 at 2. Furthermore, the undersigned recognizes that Plaintiff has made several other filings (and initiated two suits) since Judge Presnell issued the Order of Dismissal. Doc. No. 47 at 6. Nevertheless, such filings do not necessarily prove that Plaintiff received the Order of Dismissal and filed the Motion in bad faith.
As a final point, Court reminds Plaintiff that "[a] plaintiff who ignore[s] notices and orders of the court [is not] excused merely because of [his] pro se status." Moon v. Newsome, 863 F.2d 835, 838 n.5 (11th Cir. 1989) (citing Anthony v. Marion County General Hospital, 617 F.2d 1164, 1169 (5th Cir. 1980)).
Based on the foregoing, it is
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
