United States District Court, S.D. Georgia, Brunswick Division
LOPE A. LOPEZ-ORTEGA, Petitioner,
WARDEN TRACY JOHNS, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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. I further RECOMMEND that the Court DENY
Petitioner leave to appeal in forma pauperis.
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.)
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.
Dismissal for Failure to Prosecute and Follow this
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); 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, 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).
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
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.
Leave to Appeal in Forma Pauperis
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 ...