Benjamin Boston v. Sgt. Gates, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11099
Non-Argument Calendar
____________________
BENJAMIN BOSTON,
Plaintiff-Appellant,
versus
HARALSON COUNTY JAIL, et al.,
Defendants,
SGT. GATES,
Officer,
OFFICER CODY GOODMAN,
OFFICER AVERY SAVAGE,
OFFICER RODNEY ROBINSON,
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 23-11099
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:21-cv-00102-TCB
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Benjamin Boston, a pro se prisoner, appeals the district
court’s sua sponte dismissal, without prejudice, of his complaint
against jail officials for failure to comply with the court’s orders and
for failure to prosecute. He also appeals the district court’s denial
of his motion for reconsideration of that dismissal order.
Mr. Boston filed suit under 42 U.S.C. § 1983 against three jail
officials and the Haralson County Jail on July 1, 2021. He alleged
that while an inmate at the Jail in Georgia, Officers John Doe, Jane
Doe, and Sergeant Gates tazed him six times and pepper sprayed
him even though he was compliant and handcuffed behind his
back. Mr. Boston asserted violations of the First, Eighth, and Four-
teenth Amendments.
On July 20, 2021, the magistrate judge granted Mr. Boston
leave to proceed in forma pauperis and ordered him to file an
amended complaint containing the addresses of all defendants or
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 2 of 7

-- 2 of 7 --

23-11099 Opinion of the Court 3
other identifying information for them, such as physical character-
istics. On August 11, 2021, Mr. Boston amended his complaint and
identified the defendants as Sgt. Gates, a Black woman; Officer
John Doe, a white man; and Officer Jane Doe, a white woman. All
were employed at the Jail. In October of 2021, the district court
dismissed the Eighth Amendment claims and the claims against the
Jail, but allowed excessive force claims under the Fourteenth
Amendment to proceed against the officers. As to the two officers
that Mr. Boston named fictitiously, the district court reasoned that
Mr. Boston could uncover their names through discovery.
The U.S. Marshals Service was unable to serve Sgt. Gates at
the Jail on December 28, 2021, because she no longer worked there.
That kicked off an over one year back and forth between the mag-
istrate judge and Mr. Boston. In that time, the magistrate judge
ordered Mr. Boston on multiple occasions to provide an address for
Sgt. Gates. Mr. Boston would respond that he could not obtain the
information because he was incarcerated. He instead tried to point
the Marshals Service in the right direction and moved the court to
compel the Jail staff to provide Sgt. Gates’ address. Mr. Boston also
amended his complaint once more to raise excessive force claims
against Officers Cody Goodman, Avery Savage, and Rodney Rob-
inson (Officers Goodman and Savage were the Doe defendants
from the initial complaint). Eventually, though, Mr. Boston ran
into trouble because he stopped timely responding to the magis-
trate judge’s orders and could not, despite the multiple extensions,
come up with Sgt. Gates’ address.
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 23-11099
On December 6, 2022, the district court adopted the magis-
trate judge’s report, which recommended dismissing without prej-
udice Mr. Boston’s second amended complaint for failure to com-
ply with the court’s orders and failure to prosecute. The district
court rejected Mr. Boston’s explanation that the Jail had been “play-
ing with people[s’] mail” because it found the timing suspicious
given the numerous other instances in which Mr. Boston timely
made other filings. Even setting that aside, the district court ex-
plained, Mr. Boston had not offered an excuse for failing to provide
Sgt. Gates’ address. The district court concluded that “[i]f Plaintiff
has the addresses for the Defendants, he is invited to file a new
complaint and include the Defendants’ addresses.” D.E. 55 at 8.
In a motion for reconsideration, Mr. Boston again argued
that he mailed his filings on a timely basis and was entitled to the
benefit of the “Mail-Box Rule.” The district court again rejected
Mr. Boston’s argument.1
This timely appeal followed.
We review for abuse of discretion a district court’s decision
to dismiss a complaint for failure to follow a court order and/or for
failure to prosecute. See Foudy v. Indian River Cnty. Sheriff’s Off., 845
F.3d 1117, 1122 (11th Cir. 2017) (failure to follow court order);
1 “Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed
on the date it is delivered to prison authorities for mailing.” Jeffries v. United
States, 748 F.3d 1310, 1314 (11th Cir. 2014) (quotation marks omitted). Absent
evidence to the contrary, we assume that a prisoner delivered a filing to prison
authorities on the date that he signed it. See id.
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 4 of 7

-- 4 of 7 --

23-11099 Opinion of the Court 5
Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999)
(failure to prosecute).
A dismissal without prejudice for failure to comply with
court orders generally does not constitute an abuse of discretion
because the affected party may simply refile. See Dynes v. Army Air
Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983) (holding that
dismissal without prejudice for failure to file a court-ordered brief
was not an abuse of discretion). But when a dismissal “has the ef-
fect of precluding [an] appellant from refiling his claim due to the
running of the statute of limitations,” the dismissal is “tantamount
to a dismissal with prejudice,” and must be reviewed as such. See
Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981) (emphasis added).2
This is one of those cases where a dismissal without preju-
dice is in effect a dismissal with prejudice. The district court dis-
missed Mr. Boston’s second amended complaint without prejudice.
Mr. Boston’s § 1983 claims, however, were subject to Georgia’s two-
year statute of limitations for personal injury claims. See Mullinax
v. McElhenney, 817 F.2d 711, 716 n.2 (11th Cir. 1987). The injuries
Mr. Boston complained of—injuries arising out of an alleged beat-
ing by jail guards—occurred on July 5, 2020. Thus, the statute of
limitations on his § 1983 claims ran on July 5, 2022—about five
months before the district court’s order of dismissal. Mr. Boston
timely initiated this action on July 1, 2021. The complaint that was
2 Because it was decided by the former Fifth Circuit prior to October 1, 1981,
Burden is binding precedent in the Eleventh Circuit. See Bonner v. City of Prich-
ard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 23-11099
dismissed was almost certainly his only opportunity to vindicate an
alleged violation of his federal rights.
Dismissals with prejudice are “sanction[s] of last resort,” ap-
propriate “only in extreme circumstances.” Zocaras v. Castro, 465
F.3d 479, 483 (11th Cir. 2006) (quoting Goforth v. Owens, 766 F.2d
1533, 1535 (11th Cir. 1985)). To sua sponte dismiss a case with prej-
udice, a district court must “[1] find[ ] a clear record of delay or
willful conduct and [2] that lesser sanctions are inadequate to cor-
rect such conduct.” Id. (quoting Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1339 (11th Cir. 2005)).
Here we are primarily concerned with the second require-
ment. Although the requisite finding need not be explicit, see Zoca-
ras, 465 F.3d at 484, the district court failed to make any finding that
lesser sanctions would be inadequate to correct the offending con-
duct. In fact, the district court seemed to indicate the opposite by
stating that “[i]f Plaintiff has the addresses for the Defendants, he is
invited to file a new complaint and include the Defendants’ ad-
dresses.” D.E. 55 at 8.3
3 We assume, without deciding, that there is a clear record of delay or willful
conduct by Mr. Boston. We take a moment, however, to note that when the
court grants a pro se prisoner leave to proceed in forma pauperis, as was the
case here, the officers of the court must “issue and serve all process.” See 28
U.S.C. § 1915(d). Under those circumstances, “it is unreasonable to expect
incarcerated and unrepresented prisoner-litigants to provide the current ad-
dresses of prison-guard defendants who no longer work at the prison.” Rich-
ardson v. Johnson, 598 F.3d 734, 739–40 (11th Cir. 2010). After all, prison officials
are not likely to provide inmates with the locations where officers are em-
ployed. All the prisoner-litigant must do to establish good cause under Fed. R.
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 6 of 7

-- 6 of 7 --

23-11099 Opinion of the Court 7
Given that the district court believed Mr. Boston could
simply refile his complaint, it is unclear whether it would have nev-
ertheless dismissed Mr. Boston’s case. Accordingly, we vacate and
remand this case for proceedings not inconsistent with this opin-
ion.
In closing, we add one more observation. The district court
dismissed Mr. Boston’s second amended complaint, and in that
pleading Mr. Boston had named three officers who worked at the
Jail. Two of them—Officers Goodman and Savage—were defend-
ants who had previously been named as Officers Jane Doe and John
Doe. Even if dismissal might have been appropriate as to Sgt.
Gates, it is unclear as to why the entire second amended complaint
should have been dismissed when the Doe defendants were identi-
fied by name.
VACATED AND REMANDED.
Civ. P. 4(m) is provide “enough information to identify the prison-guard de-
fendant” so that the court-appointed agent can locate the guard with “reason-
able effort.” See id. at 740 (vacating and remanding dismissal for district court
to determine whether prison-guard defendant could be located with “reason-
able effort”).
USCA11 Case: 23-11099 Document: 17-1 Date Filed: 03/18/2024 Page: 7 of 7

-- 7 of 7 --