United States District Court, S.D. Georgia, Waycross Division
CAMPBELL C. HARRINGTON, Petitioner,
WARDEN TRACY JOHNS, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Petitioner's failure to
respond to Respondent's Motion to Dismiss. (Doc. 21.)
Despite being instructed by the Court to respond to the
Motion, Petitioner has failed to file any response. Indeed,
he has not taken any action in this case in nearly two
months. Therefore, I RECOMMEND that the Court DISMISS
Petitioner's Petition, (doc. 1), without prejudice for
his failure to prosecute and failure to follow this
Court's Rules. I further RECOMMEND that the Court DENY
Petitioner leave to appeal in forma pauperis.
who was formerly incarcerated at D. Ray James Correctional
Facility, brought this action pursuant to 28 U.S.C. §
2241 on September 8, 2015. (Doc. 1.) After the Court ordered
service of the Petition, Respondent filed a Motion to Dismiss
on February 14, 2017. (Doc. 21.) On February 28, 2017, the
Court ordered Petitioner to respond to the Motion to Dismiss
within fourteen days. (Doc. 22.) The Court explained that if
Petitioner failed to respond to the Motion to Dismiss, the
Court would dismiss this action. (Id.) Despite that
clear warning, Petitioner has failed to file any pleading in
response to the Respondent's Motion. Indeed, Petitioner
has not taken any action in this case since informing the
Court of his change of address nearly two months ago.
Court must now determine how to address Petitioner's
failure to follow this Court's Orders and his failure to
prosecute this case. For the reasons set forth below, I
recommend that the Court dismiss the Petition and deny
Petitioner 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
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 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
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). Petitioner has failed
to respond to the Motion to Dismiss despite having been
served with the Motion and directed by the Court to file a
response. Furthermore, with Petitioner not having taken any
action in this case in nearly two months, he has failed 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 deficiencies.
these reasons, the Court should DISMISS Petitioner's
Petition, (doc. 1), without prejudice for failure to
prosecute and failure to follow this Court's Order, and
CLOSE this case.
Leave to Appeal in Forma Pauperis.
Court should also deny Petitioner leave to appeal in
forma pauperis. Though Petitioner 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 is not taken
in good faith “before or after the notice of appeal is
appeal cannot be taken in forma pauperis if the
trial court certifies 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