CLEVELAND v. SAPP et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MICHAEL CLEVELAND,
Plaintiff,
v. 	Case No. 5:24-cv-91-MCR-MJF
HERMAN SAPP,
Defendant.
/
REPORT AND RECOMMENDATION
The 	undersigned 	recommends 	that 	the 	District 	Court 	dismiss
Plaintiff’s claim against Defendant Herman Sapp because Plaintiff failed
to comply with two court orders and failed to prosecute his claim against
Sapp.
P LAINTIFF’S A MENDED COMPLAINT
Plaintiff filed this civil-rights action on May 7, 2024. Doc. 1. On
March 19, 2025, Plaintiff filed an amended complaint that named two
Defendants: Sergeant Sapp and Sergeant Jordan. Doc. 14. Plaintiff
alleges that Sapp and Jordan violated the Eighth Amendment on August
14, 2022, when they used excessive force on Plaintiff.
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P ROCEDURAL H ISTORY
On 	October 	6, 	2025, 	Plaintiff 	voluntarily 	dismissed 	his 	claim
against Defendant Jordan due to Jordan’s death. See Docs. 29–32.
On 	October 	10, 	2025, 	the 	undersigned 	notified 	Plaintiff 	that
Defendant 	Sapp waived 	service 	on 	July 18, 	2025, 	and that 	Sapp’s
deadline to file a response to Plaintiff’s amended complaint expired. See
Doc. 	33. 	The 	undersigned 	ordered 	Plaintiff 	to 	(1) 	file 	a 	notice 	of
voluntarily dismissal of his claim against Sapp; or (2) take further steps
to prosecute his claim against Sapp. Id. The undersigned imposed a
compliance deadline of November 10, 2025, and warned Plaintiff that
failure to comply with the order likely would result in Plaintiff’s claim
against Sapp being dismissed based on Plaintiff’s failure to comply with
a court order and abandonment of his claim against Sapp.
In response, Plaintiff filed a notice on November 4, 2025 stating:
“Plaintiff w[i]ll take further steps to prosecute Defendan[t] H. Sapp.” Doc.
35. Plaintiff, however, did not take any further steps to prosecute his
claim against Sapp.
Accordingly, 	on 	November 	17, 	2025, 	the 	undersigned 	ordered
Plaintiff to explain and show cause why Plaintiff’s claim against Sapp
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should not be dismissed based on Plaintiff’s failure to comply with the
October 10 order, Plaintiff’s failure to prosecute his claim against Sapp,
and Plaintiff’s abandonment of his claim against Sapp. Doc. 36. The
undersigned imposed a compliance deadline of December 1, 2025 and
warned Plaintiff that: “If Plaintiff does not take affirmative, appropriate
steps to prosecute his claim against Defendant Sapp by DECEMBER 1,
2025, then the District Court likely will dismiss Plaintiff’s claim against
Sapp without prejudice and close this case.” Id. at 2.
To date, Plaintiff has not complied with the October 10 order, has
not responded to the December 1 show-cause order, and has not taken
any further steps to prosecute his claim against Sapp.
D ISCUSSION
“Federal courts possess an inherent power to dismiss a complaint
for failure to comply with a court order.” Foudy v. Indian River Cnty.
Sheriff’s Off., 845 F.3d 1117, 1126 (11th Cir. 2017) (citations omitted);
N.D. Fla. Loc. R. 41.1. A district court also may dismiss a civil action
when a plaintiff fails to prosecute the case. See Fed. R. Civ. P. 41(b).
It appears that Plaintiff has abandoned his claim against Sapp.
Even if Plaintiff has not abandoned it, dismissal is warranted based on
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Plaintiff’s failure to comply with two court orders. Plaintiff offered no
excuse for his failures and, consequently, has not shown good cause to
avoid dismissal. Accordingly, the District Court should dismiss Plaintiff’s
claim against Sapp. See, e.g., Baker v. Rathel, No. 1:23-cv-3-AW-MJF,
Doc. 32 (N.D. Fla. Feb. 22, 2024) (dismissing pro se prisoner’s claim
against sole remaining defendant because prisoner failed to prosecute
claim after defendant’s motion to dismiss was denied); Walker v. Barnes,
No. 5:2-cv-131-TKW/MJF, 2025 WL 3258614 (N.D. Fla. Nov. 21, 2025)
(dismissing pro se prisoner’s case based on prisoner’s failure to prosecute
and failure to comply with a court order after prisoner failed to respond
to defendants’ motions to dismiss despite being ordered to do so and being
warned that court would construe failure as abandoning the case).
Dismissing the claim against Sapp will not prejudice Plaintiff
because Plaintiff retains the ability to refile that claim in a new civil case
against Sapp if Plaintiff so chooses. See Dynes v. Army Air Force Exch.
Serv., 720 F.2d 1495, 1499 (11th Cir. 1983).
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
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1. 	DISMISS 	without 	prejudice 	Plaintiff’s 	claim 	against
Defendant Sapp based on Plaintiff’s failure to prosecute and failure to
comply with court orders.
2. 	DIRECT the clerk of court to enter a judgment that says,
“Plaintiff’s claim against Defendant Sapp is dismissed without prejudice
for failure to prosecute and failure to comply with court orders.”
3. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 19th day of December, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this report and recommendation waives the
right to challenge on appeal the District Court’s order
based on unobjected-to factual and legal conclusions.
See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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