Lopez-Ortega v. Johns

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon Petitioner Lope A. Lopez-Ortega's (“Lopez-Ortega”) failure to comply with the Court's Order of March 21, 2017, (doc. 10), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS Lopez-Ortega's action without prejudice for failure to follow the Court's directive and failure to prosecute.^[1] I further RECOMMEND that the Court DENY Petitioner leave to appeal in forma pauperis.

         BACKGROUND

         On November 29, 2016, Lopez-Ortega, who is currently incarcerated at D. Ray James Correctional Institution in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss on March 9, 2017. (Doc. 8.) On March 21, 2017, the Court issued an Order directing Lopez-Ortega to file any objections to Respondent's Motion to Dismiss within fourteen (14) days. (Doc. 10.) The Court specifically advised Lopez-Ortega that if he failed to respond, the Court would presume that he does not oppose dismissal of this action. (Id.) Despite this warning, Lopez-Ortega has entirely failed to respond to Respondent's Motion to Dismiss. Indeed, Lopez-Ortega has not made any filings in this case since February 17, 2017. (Doc. 4.)

         DISCUSSION

         The Court must now determine how to address Lopez-Ortega's failure to comply with this Court's Orders, failure to respond to Respondent's Motion to Dismiss, and failure to prosecute this action. For the reasons set forth below, I RECOMMEND that the Court DISMISS Lopez-Ortega's Petition and DENY him leave to appeal in forma pauperis.

         I. Dismissal for Failure to Prosecute and Follow this Court's Orders

         A district court may dismiss a petitioner's claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court's inherent authority to manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962);^[2] 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)).

         It is 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.

         While 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, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); 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).

         Despite the Court advising Lopez-Ortega of his obligation to respond to Respondent's Motion to Dismiss and the consequences for failing to respond, Lopez-Ortega has not filed any opposition to Respondent's Motion. Additionally, with Lopez-Ortega not having taken any action in this case for over two months, he has failed to diligently prosecute his claims.

         Thus, the Court should DISMISS Lopez-Ortega's Section 2241 Petition, (doc. 1), without prejudice, for failure to prosecute and failure to follow this Court's Orders, and DIRECT the Clerk of Court to CLOSE this case.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Lopez-Ortega leave to appeal in forma pauperis. Though Lopez-Ortega has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal ...