Leon Bright v. Regina Zeigler, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13666
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-01280-EAK-JSS
LEON BRIGHT,
Plaintiff-Appellant,
versus
REGINA ZEIGLER,
Officer,
ERIK TURNER,
Officer,
GARFIELD NEAL,
Sergeant
a.k.a. Gary,
BOB BUCKHORN,
Mayor,
JANE CASTOR,
Chief of Police, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
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(February 22, 2016)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Leon Bright appeals dismissal of his pro se 42 U.S.C. § 1983 complaint for
failure to prosecute and denial of his motion for reconsideration. We vacate and
remand.
I. BACKGROUND
In his complaint, Bright alleged he was waiting at a bus stop when Sergeant
Garfield Neal of the Tampa Police Department approached him. Bright declined to
speak with Sergeant Neal and attempted to walk away, at which point Sergeant
Neal struck him in the torso with a flashlight and violently threw him to the
ground. Officers Erik Turner and Regina Zeigler arrived on the scene and assisted
Sergeant Neal in his assault on Bright, although Bright had made no attempt to
resist. The officers then conspired to fabricate charges against Bright to justify
their unlawful use of excessive force against him. The charges ultimately were
dismissed, but Bright lost his job and residence as a result of his arrest and
incarceration; he also suffered physical injuries from the assault. Based on these
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facts, Bright asserted twelve federal and state law claims against the officers, the
Chief of Police, the Mayor of Tampa, and the City of Tampa.
Bright filed a motion to proceed in forma pauperis and a motion to invoke
the services of the clerk and federal marshals to make service. In a June 12, 2015,
order, the district judge granted Bright’s motion to proceed in forma pauperis and
directed him to complete a summons form for each defendant and return the forms
to the clerk within 20 days for service. On July 9, 2015, the district judge
dismissed the case for failure to prosecute because Bright had failed to file service
forms as directed in the June 12, 2015, order.
Bright filed a motion for reconsideration and asserted he had not received a
copy of the June 12, 2015, order at his home address; he offered to provide an
affidavit from the owner of the home stating the order was never delivered. He
further contended he had complied with the order because he had attached several
completed summons forms to his motion to invoke the services of the marshals.
Finally, he requested that the judge accept the summons forms attached to his
motion for reconsideration. The district judge denied Bright’s motion for failure to
comply with the local rules and to file a memorandum of law in support of his
motion.
On appeal, Bright argues the district judge erred and demonstrated bias in
dismissing his case for failure to prosecute and denying his motion for
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reconsideration. He contends he never received the June 12, 2015, order;
consequently, he did not willfully fail to comply with it. Furthermore, he provided
the summons forms with his initial complaint and his motion for reconsideration,
but the district judge ignored his attempts to comply with the order. Therefore,
Bright requests the district judge’s orders be reversed, and the judge be recused.
II. DISCUSSION
We review a dismissal for failure to prosecute or to comply with a court
order for abuse of discretion. See Betty K Agencies, Ltd. v. M/V MONADA, 432
F.3d 1333, 1337 (11th Cir. 2005); Goforth v. Owens, 766 F.2d 1533, 1535 (11th
Cir. 1985). On a defendant’s motion, a district judge may dismiss an action for
failure to prosecute or to comply with a court order. Fed. R. Civ. P. 41(b). Such a
dismissal, with certain exceptions not relevant here, operates as an adjudication on
the merits. Id. This occurs when the order of dismissal fails to specify whether it
is with or without prejudice. Kaspar Wire Works, Inc. v. Leco Eng’g & Mach.,
Inc., 575 F.2d 530, 534 (5th Cir. 1978). District judges also possess the inherent
authority to dismiss a case for want of prosecution sua sponte. Betty K Agencies,
Ltd., 432 F.3d at 1337. As with dismissals pursuant to a motion, a sua sponte
dismissal operates as an adjudication on the merits unless otherwise specified. See
Costello v. United States, 365 U.S. 265, 286-87, 81 S. Ct. 534, 545, 5 L. Ed. 2d
551 (1961). Whether the case is dismissed on a motion or sua sponte, dismissal
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with prejudice is proper only when the judge finds there has been a clear pattern of
delay or willful contempt and lesser sanctions would not suffice. Betty K Agencies,
Ltd., 432 F.3d at 1337-38.
A judge must disqualify himself “in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). To determine whether
disqualification is warranted, we ask whether a disinterested observer fully
informed of the grounds on which recusal was sought would entertain significant
doubts concerning the judge’s impartiality. Bivens Gardens Office Bldg., Inc. v.
Barnett Banks of Fla., Inc., 140 F.3d 898, 912 (11th Cir. 1998).
In this case, the judge’s sua sponte dismissal of Bright’s complaint for
failure to comply with a court order and failure to prosecute operates as an
adjudication on the merits, although the order did not specify whether the dismissal
was with or without prejudice. See Costello, 365 U.S. at 286-87, 81 S. Ct. at 545;
Betty K Agencies, Ltd., 432 F.3d at 1337; Kaspar Wire Works, Inc., 575 F.2d at
534. Therefore, the judge was required to make findings Bright had engaged in a
clear pattern of delay or willful contempt, where lesser sanctions would not suffice.
Betty K Agencies, Ltd., 432 F.3d at 1337-38. The dismissal order did not make
these findings, it stated only that Bright had failed to comply with the June 12,
2015, order and file service forms for each defendant. The mere fact Bright had
failed to file the necessary forms to perfect service on the defendants does not
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demonstrate a clear pattern of delay or willful contempt; there is nothing in the
record to support that finding. See Betty K Agencies, Ltd., 432 F.3d at 1340.
Furthermore, there is nothing in the record to show lesser sanctions, such as a
dismissal without prejudice, would have been inadequate. See id. at 1340-41
(explaining dismissal without prejudice is an appropriate lesser sanction for failure
to complete service). Consequently, the district judge erred in dismissing Bright’s
complaint, because the dismissal operates as a dismissal with prejudice, and the
judge failed to make the necessary findings to support that dismissal. See Costello,
365 U.S. at 286-87, 81 S. Ct. at 545; Betty K Agencies, Ltd., 432 F.3d at 1337-38;
Kaspar Wire Works, Inc., 575 F.2d at 534. Therefore, we vacate the dismissal
order and remand for further proceedings consistent with this opinion.
This case need not be reassigned to a different district judge on remand.
Bright has not demonstrated recusal is warranted. The judge’s ruling adversely to
Bright, without more, does not create significant doubts regarding the judge’s
impartiality; Bright notes no other facts suggesting bias on the part of the district
judge. See Bivens Gardens Office Bldg., Inc., 140 F.3d at 912; 28 U.S.C. § 455.
VACATED AND REMANDED.
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