United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Petitioner's failure to
pay the filing fee associated with this action and failure to
comply with the Clerk of Court's directive regarding the
same. (Doc. 2.) Because Petitioner has not submitted a filing
fee or moved to proceed in forma pauperis, I
RECOMMEND that the Court DISMISS Petitioner's Petition,
(doc. 1), without prejudice for his failure to follow this
Court's Orders and failure to prosecute. I further
RECOMMEND that the Court DENY Petitioner a certificate of
appealability and DENY him leave to appeal in forma
an inmate at Core Civic Solutions in Nicholls, Georgia,
brought this action pursuant to 28 U.S.C. § 2254 on
February 3, 2017. (Doc. 1.) However, he did not provide the
requisite filing fee or file an application to proceed in
forma pauperis. The Clerk of Court issued a Notice
regarding Petitioner's failure to pay the filing fee.
(Doc. 2.) In that Notice, the Clerk stated, “You must
either pay the filing fee or submit a properly completed
‘Motion to Proceed In Forma Pauperis' within 21
days from the date of this notice.” (Id.) The
Notice further advised Petitioner that if he did not comply
with its directive, the Court may dismiss his case.
(Id.) The Court mailed that Notice to Petitioner at
the most recent address it has for him. The Court received no
information indicating this Notice did not reach Petitioner
or was otherwise undeliverable to Petitioner. However,
Petitioner has not provided the filing fee or a motion to
proceed in forma pauperis, and the Court has not
received any pleading from Petitioner since that Notice.
Court must now determine how to address Petitioner's
failure to comply with this Court's directive and his
failure to prosecute this case. For the reasons set forth
below, I recommend that the Court dismiss the Petition and
deny Petitioner a certificate of appealablity and leave to
appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a petitioner'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
Railroad Company, 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 petitioner'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, where
plaintiff failed to follow court order to file amended
complaint and court had informed plaintiff that noncompliance
could lead to dismissal). With Petitioner having failed to
provide the Court with a filing fee or a motion to proceed
in forma pauperis, the Court has no means to collect
the filing fees in this case or to assess Petitioner's
eligibility for in forma pauperis status.
Furthermore, with Petitioner not having taken any action in
this case following the Court's Notice, he has failed to
follow this Court's Order and to diligently prosecute his
claims. Thus, Petitioner has demonstrated a clear record of
delay and disregard for this Court's Orders, and a
sanction other than dismissal would not suffice to remedy his
these reasons, the Court should DISMISS the Petition, (doc.
1), without prejudice for failure to prosecute and failure to
follow this Court's Order, and CLOSE this case.
Denial of Leave to Appeal in Forma Pauperis and
Certificate of Appealability.
Court should also deny Petitioner leave to appeal in
forma pauperis, and deny a Certificate of Appealability
(“COA”). Though Petitioner has, of course, not
yet filed a notice of appeal, it would be appropriate to
address theat issues in the Court's order of dismissal.
Rule 11 of the Rules Governing Section 2254 cases provides
that the “district court must issue or deny a
certifiacate of appealability when it enters a final order
adverse to the applicant.” See also Thomas v.
Crosby, 371 F.3d 782, 797 (11th Cir. 2004) (Tjoflat, J.,
specially concurring) (“A district court may sua
sponte grant or deny a COA at the same time it rules on
the merits of a habeas petition or rejects it on procedural
grounds. This is arguably the best time for a district judge
to decide this matter because the issues are still fresh in
[the district court's] mind.”); Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
sua sponte denial of COA before movant filed a
notice of appeal); Fed. R. App. P. 24(a)(3) (trial court may
certify that appeal is not taken in good faith “before
or after the notice of appeal is filed”).
appeal cannot be taken in forma pauperis if the
trial court certifies, either before or after the notice of
appeal is filed, that the appeal is not taken in good faith.
28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good
faith in this context must be judged by an objective
standard. Busch v. Cty. of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith
when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated
another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is