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 Plaintiff's failure to
comply with the Court's Order of January 31, 2017, to
furnish the Court with his prison trust fund account
statement and his consent to collection of fees from that
account. (Doc. 3.) 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 failure to prosecute and DIRECT the
Clerk of Court to CLOSE this case. I further RECOMMEND the
Court DENY Plaintiff leave to appeal in forma
who is housed at Coffee Correctional Facility in Nicholls,
Georgia, brought this action pursuant to 42 U.S.C. §
1983 on January 30, 2017. (Doc. 1.) Plaintiff also filed a
Motion for Leave to Proceed in Forma Pauperis. (Doc.
2.) On January 31, 2017, the Court granted Plaintiff's
Motion. (Doc. 3.) 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 March 2, 2017, the Court would
dismiss this case without prejudice for failure to prosecute
and follow this Court's Orders. (Id. at p. 4.)
January 31, 2017, 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
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, as it cannot
collect the required statutory fees. See 28 U.S.C.
§ 1915. 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. Additionally, Plaintiff
has taken no action in this case since filing his Complaint
and Motion for Leave to Proceed in Forma Pauperis on
January 30, 2017.
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.
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 ...