United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
matter comes before the Court on Plaintiff's failure to
comply with the Court's Order of December 14, 2016, to
furnish the Court with his prison trust fund account
statement and his consent to collection of fees from that
account. (Doc. 5.) For the following reasons, I RECOMMEND the
Court DISMISS Plaintiff's Complaint, (doc. 1), without
prejudice for Plaintiff's failure to follow this
Court's Orders and DIRECT the Clerk of Court to CLOSE
this case. I further RECOMMEND the Court DENY Plaintiff's
Motion for Preliminary Injunction, (doc. 1), as MOOT and DENY
Plaintiff leave to appeal in forma pauperis.
who is housed at Georgia State Prison in Reidsville, Georgia,
brought this action pursuant to 42 U.S.C. § 1983 on
November 17, 2016. (Doc. 1.) On November 22, 2016, the Court
deferred ruling on Plaintiff's Motion for Leave to
Proceed in Forma Pauperis because Plaintiff failed
to use the Court's preferred application form. (Doc. 3.)
Plaintiff re-submitted his Motion, (doc. 4), and the Court
granted his Motions by Order dated December 14, 2016. (Doc.
5.) In that Order, the Court instructed Plaintiff to furnish
the Court with a statement of his prison trust fund account
and the consent to collection of fees from that account
pursuant to 28 U.S.C. § 1915(b)(1). (Id. at pp.
2-3.) The Court stressed that Plaintiff was to immediately
inform the Court of any change of address, and his failure to
do so would result in the dismissal of this case, without
prejudice. (Id. at p. 3.) The Court also explained
that, if Plaintiff failed to complete and return these forms
or otherwise respond to the Court's directives by January
13, 2017, the Court would dismiss this case without prejudice
for failure to prosecute and follow this Court's Orders.
(Id. at p. 4.)
December 14, 2016, the Clerk of Court mailed a copy of the
Court's Order to Plaintiff at his last known place of
incarceration, and the Order was not returned to the Court as
undeliverable or otherwise failing to reach Plaintiff.
However, the Court has not received any pleading from
Plaintiff which is responsive to that Order.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directives. For the
reasons set forth below, I RECOMMEND the Court DISMISS
Plaintiff's Complaint without prejudice and DENY
Plaintiff leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) or the court's
inherent authority to manage its docket. Link v. Wabash
R.R. Co., 370 U.S. 626 (1962); Coleman v. St. Lucie
Cty. Jail, 433 F. App'x 716, 718 (11th Cir. 2011)
(citing Fed.R.Civ.P. 41(b) and Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In
particular, Rule 41(b) allows for the involuntary dismissal
of a plaintiff's claims where he has failed to prosecute
those claims, comply with the Federal Rules of Civil
Procedure or local rules, or follow a court order.
Fed.R.Civ.P. 41(b); see also Coleman, 433 F.
App'x at 718; Sanders v. Barrett, No. 05-12660,
2005 WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing
Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993));
cf. Local R. 41.1(b) (“[T]he assigned Judge
may, after notice to counsel of record, sua sponte .
. . dismiss any action for want of prosecution, with or
without prejudice[, ] . . . [based on] willful disobedience
or neglect of any order of the Court.” (emphasis
omitted)). Additionally, a district court's “power
to dismiss is an inherent aspect of its authority to enforce
its orders and ensure prompt disposition of lawsuits.”
Brown v. Tallahassee Police Dep't, 205 F.
App'x 802, 802 (11th Cir. 2006) (quoting Jones v.
Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
true that dismissal with prejudice for failure to prosecute
is a “sanction . . . to be utilized only in extreme
situations” and requires that a court “(1)
conclud[e] a clear record of delay or willful contempt
exists; and (2) mak[e] an implicit or explicit finding that
lesser sanctions would not suffice.” Thomas v.
Montgomery Cty. Bd. of Educ., 170 F. App'x 623,
625-26 (11th Cir. 2006) (quoting Morewitz v. West of Eng.
Ship Owners Mut. Prot. & Indem. Ass'n (Lux.), 62
F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v.
Spaziano, 251 F. App'x 616, 619 (11th Cir. 2007)
(citing Morewitz, 62 F.3d at 1366). By contrast,
dismissal without prejudice for failure to prosecute
is not an adjudication on the merits, and, therefore, courts
are afforded greater discretion in dismissing claims in this
manner. Taylor, 251 F. App'x at 619; see
also Coleman, 433 F. App'x at 719; Brown,
205 F. App'x at 802-03.
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action without prejudice is
warranted. See Coleman, 433 F. App'x at 719
(upholding dismissal without prejudice for failure to
prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant's current
address for purpose of service); Taylor, 251 F.
App'x at 620-21 (upholding dismissal without prejudice
for failure to prosecute because plaintiffs insisted on going
forward with deficient amended complaint rather than
complying, or seeking an extension of time to comply, with
court's order to file second amended complaint);
Brown, 205 F. App'x at 802-03 (upholding
dismissal without prejudice for failure to prosecute Section
1983 claims, where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal). With Plaintiff having
failed to provide the Court with his consent to collection of
fees and his trust account statement, as directed, the Court
is unable to move forward with this case. Moreover, Plaintiff
was given ample time to follow the Court's directive, and
Plaintiff has not made any effort to do so or to inform the
Court as to why he cannot comply with its directives.
RECOMMEND the Court DISMISS without prejudice Plaintiff's
Complaint, (doc. 1), for failure to prosecute and failure to
follow this Court's Orders and DIRECT the Clerk of Court
to CLOSE this case. The Court should also DENY
Plaintiff's Motion for Preliminary Injunction, (doc. 1),
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff has, of course, not yet filed
a notice of appeal, it is proper to address these issues in
the Court's order of dismissal. See Fed. R. App.
P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis ...