Doherty v. Borrows, et al.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 23-cv-14395-ALTMAN/REINHART
KEITH ROBERT DOHERTY,
Plaintiff,
vs.
DEPUTY BORROW and
SERGEANT PHILLIPS,
Defendants.
_______________________________________/
REPORT AND RECOMMENDATION REGARDING DISMISSAL
Judge Altman referred this matter to me for a report and recommendation on
whether this case should be dismissed. ECF No. 170. Upon review of the record,
Plaintiff’s whereabouts are currently unknown, and he has repeatedly failed to
respond to the Court’s directives. For the reasons discussed below this case should be
DISMISSED WITH PREJUDICE.
Under Federal Rule of Civil Procedure 41: “[i]f the plaintiff fails to prosecute
or to comply with ... a court order, a defendant may move to dismiss the action.” Fed.
R. Civ. P. 41(b); see also McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 1520 (11th
Cir. 1986) (noting that the “decision to dismiss for want of prosecution lies within the
trial court's discretion”). The Eleventh Circuit has made clear that a district court
may dismiss a case for lack of prosecution based on its own “inherent power to manage
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its docket.” Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.
2005).
Dismissal with prejudice for failure to prosecute “is a sanction of last resort
that is to be utilized only in extreme situations” and it “can be imposed only in the
face of a clear record of delay or contumacious conduct by the plaintiff.” Morewitz v.
West of England Ship Owners Mut. Prot. and Indem. Ass'n (Luxembourg), 62 F.3d
1356, 1366 (11th Cir. 1995); see also Betty K, 432 F.3d at 1337–38 (holding that
dismissal with prejudice may be imposed only when a party engages in a clear pattern
of delay or willful contempt and the district court specifically finds that lesser
sanctions would not suffice). In contrast, a dismissal without prejudice is not an
adjudication on the merits and, therefore, courts are afforded greater discretion in
dismissing claims in this manner. See Coleman v. St. Lucie Cnty. Jail, 433 F. App'x
716, 719 (11th Cir. 2011) (affirming dismissal of complaint without prejudice for
failure to prosecute).
This case has been pending for almost two years. Over the course of this case,
Mr. Doherty repeatedly failed to follow this Courts’ discovery Orders, attempted to
engage 	in 	ex-parte 	communications 	despite 	instructions 	not 	to, 	and 	has 	been
repeatedly warned about his failure to comply with the Federal Rules of Civil
Procedure, and the Southern District of Florida’s Local Rules. See ECF No. 52, 61,
93, 152–53, 156, 158. 	Over six months have passed since Judge Altman initially
referred this matter to me for an evidentiary hearing. ECF No. 149. That evidentiary
hearing was supposed to take place over four months ago. ECF No. 150. 	Instead of
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filing a motion to continue, Mr. Doherty choose to engage in ex-parte communication
to ask the Court to reschedule the hearing despite prior admonishments not to do so.
ECF Nos. 93, 152–53. When his improper request to continue the July hearing was
denied, I cautioned Mr. Doherty that his failure to comply with the rules may result
in sanctions. Yet, Mr. Doherty violated the Court’s directives by calling Chambers
again ex-parte six minutes prior to the start of the July 2025 hearing to notify the
Court he was not going to appear. ECF Nos. 155–56. I ordered Mr. Doherty to show
cause why he failed to appear at the July 2025 hearing by July 28, 2025, and directed
the Clerk of Court to mail him a copy of the order. The Clerk of Court mailed him a
copy on July 8, 2025. Mr. Doherty failed to comply with that deadline. I then gave
Mr. Doherty a second opportunity to explain his failure to appear with a warning that
his 	continued 	failure 	to 	comply 	with 	Court 	orders 	may 	result 	in 	this 	Court
recommending his claims be dismissed with prejudice. ECF No. 158. That second
deadline expired on August 18, 2025.
Over a month after his August deadline expired, Mr. Doherty filed a “Request
for Clarification” and a contemporaneous Notice of Change of Address from jail. ECF
Nos. 160, 161. Mr. Doherty said he could not attend the hearing because he was
suffering from “blood clots in the brain” and his PACER access was suspended. ECF
No. 161. He also requested a copy of the docket. ECF. No. 159. Conversely, according
to a probable cause affidavit from the Seminole County Sheriff’s Office, Mr. Doherty
was caught on surveillance shoplifting a 65-inch Roku TV from a Target in Lake
Mary, Florida the day after the July 2025 hearing. ECF No. 164-1. Mr. Doherty was
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ultimately arrested on July 10, 2025, after he was caught shoplifting a second time.
Id. 	Judge Altman amended his referral order noting his concerns with Plaintiff’s
failure to appear at the July 2025 hearing and subsequent failures to comply with
court orders. ECF No. 170.
So, this Court attempted to give Mr. Doherty a third opportunity to explain his
failure to appear and failures to comply. I directed counsel for the Defendants to
coordinate with the facility where Mr. Doherty was housed and provide joint
availability for a Zoom hearing. ECF No. 171. But, by then Mr. Doherty had already
been released on a surety bond ECF No. 172.
Mindful of Plaintiff’s pro se status, this Court issued an Order to Show Cause
explaining that while pro se litigants are generally afforded an appropriate measure
of leniency, such litigants must still comply with Court Orders and governing
procedural rules, including by keeping the Court apprised of their current mailing
address and actively prosecuting their claims. ECF No, 172; See S.D. Fla. L.R. (“A
party appearing pro se shall conventionally file a Notice of Current Address with
updated contact information within seven (7) days of a change. The failure to comply
shall not constitute grounds for relief from deadlines imposed by Rule or by the Court.
All Court Orders and Notices will be deemed to be appropriately served if directed
either electronically or by conventional mail consistent with information on file with
the Clerk of Court.”).
Mr. Doherty was ordered to either (1) conventionally file a Notice of Current
Address with updated contact information, or (2) file a written response that explains
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why he is unable to do so. ECF No. 172. The Order set a deadline of October 28, 2025.
Id. I cautioned Mr. Doherty that his failure to comply with this Order will result in
my recommendation that this action be dismissed without further notice. Id. The
Clerk of Court sent the Order via U.S. Mail to Plaintiff's mailing address of record.
ECF No. 173. Plaintiff has neither timely responded to this Order, nor has he
otherwise demonstrated any intention to pursue this lawsuit.
Instead, on October 31, 2025, Mr. Doherty filed a notice of consent to receive
notice of electronic filings via electronic mail. ECF No. 174. Mr. Doherty’s notice of
consent is inconsistent with his prior representations to the Court that he no longer
had access to his PACER account—an unsupported justification he used to explain
his prior failure to appear at the July 7, 2025. 	See ECF No. 158. Either way, his
notice is untimely. And, I do not find he failed to timely file his notice because of
excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Even if I were to deem his notice to be
timely, his filing is still insufficient to discharge my Order to Show Cause. The notice
neither updates Plaintiff’s current address nor explains why he is unable to do so.
Mr. Doherty has filed at least four Notices of Current address in the past. See ECF
Nos. 32, 43, 86, 160. Conversely, the record also reflects Mr. Doherty has filed at least
one other notice of consent to receive electronic filings in the past. Likewise, over the
course of approximately two years that his case has been pending, Mr. Doherty has
had no issues filing numerous motions and notices pro se. To date, Mr. Doherty has
failed to show cause why he did not appear at the July hearing. I also note, to date,
Mr. Doherty has made no other filings or made any efforts to prosecute this case.
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In conclusion, the Court is mindful that Mr. Doherty is proceeding pro se, but
he is still required to comply with the procedural rules. Burger v. Hartley, 2012 WL
12837901, at *1 (S.D. Fla. Aug. 30, 2012) (citing Moton v. Cowart, 631 F.3d 1337, 1341
n.2 (11th Cir. 2011). Mr. Doherty violated the Court’s directives by improperly
communicating with the court and failing to appear at an evidentiary hearing. The
Court provided Mr. Doherty two opportunities over the course of two months to justify
his failure to appear and cautioned him that his failure to comply could result in
sanctions including dismissal. He failed to do so. Upon release from jail, the Court
reminded 	Mr. 	Doherty 	of 	his 	obligation 	to 	update 	his 	address 	and 	continue
prosecuting this case. Mr. Doherty was cautioned a final time, that his failure to
comply would result in this Court recommending dismissal. His deadline to comply
expired on October 28, 2025. To date, Mr. Doherty has failed to show cause why he
did not appear at the July hearing. 	I also note, to date, Mr. Doherty has made no
other filings or made any efforts to prosecute this case. For these reasons, I find of a
clear record of delay and contumacious conduct by the Plaintiff, so, I recommend this
case be dismissed with prejudice. Morewitz, 62 F.3d at 1366; see also Betty K, 432
F.3d at 1337–38.
REPORT AND RECOMMENDATION
Accordingly, this Court RECOMMENDS that the District Court DISMISS
this case WITH PREJUDICE.
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NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable Roy K. Altman, United States District Court
Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being
served with a copy of this Report and Recommendation. Failure to timely file
objections shall constitute a waiver of a party's "right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions." 11th Cir.
R. 3-1 (2016).
If counsel do not intend to file objections, they shall file a notice
advising 	the 	District 	Court 	within 	FIVE 	DAYS 	of 	this 	Report 	and
Recommendation.
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 12th day of November 2025.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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