United States District Court, S.D. Georgia, Statesboro 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 this Court's Order to keep the Court apprised
of any change in his address and to return his prison trust
fund account statement. For the following reasons, I
RECOMMEND that the Court DISMISS Plaintiff's Complaint,
(doc. 1), without prejudice for Plaintiff's failure to
prosecute and failure to follow this Court's Orders. I
further RECOMMEND that the Court DENY Plaintiff leave to
appeal in forma pauperis.
October 24, 2016, Plaintiff, proceeding pro se,
filed a Complaint contesting certain conditions of his
confinement while housed at Smith State Prison in Glennville,
Georgia. (Doc. 1.) On December 16, 2016, Plaintiff filed a
Motion to Proceed in Forma Pauperis. (Doc. 14.) On
December 29, 2016, the Court granted Plaintiff leave to
proceed in forma pauperis. (Doc. 16.) In that Order,
the Court instructed Plaintiff to furnish the Court with the
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
explained that, if Plaintiff failed to respond to the
Court's Order by January 30, 2017, the Court would
dismiss this case. (Id. at p. 4.) Although Plaintiff
returned his consent to collection of fees form, he failed to
return his prison trust fund account form. (Doc. 21.)
Plaintiff averred that he “forwarded the Prisoner Trust
Fund Account Statement to the Prison's
business/accounting office for completion on January 6,
2017”, but that “form has yet to be returned to
me.” (Doc. 21-1.) Accordingly, by Order dated March 22,
2017, the Court gave Plaintiff an additional opportunity to
submit his properly completed prison trust fund account
statement. (Doc. 32.) The Court ordered Plaintiff to return
his prison trust fund account statement within fourteen (14)
days of that Order and warned that, if Plaintiff failed to do
so, the Court would dismiss his case for failure to prosecute
and failure to follow a Court Order.
in the Court's December 29, 2016, Order granting
Plaintiff leave to proceed in forma papueris, the
Court ordered Plaintiff to immediately inform this Court in
writing of any change in his address. (Id. at p. 3.)
The Court emphasized that, should Plaintiff fail to comply
with this directive, the Court would dismiss his case.
Id. The Clerk of the Court mailed its March 22,
2017, Order to Plaintiff at his last known place of
residence, Smith State Prison in Glennville, Georgia.
However, the mail was returned as undeliverable. (Doc. 33.)
Plaintiff has not notified the Court of his change of address
or made any effort to inform the Court of his whereabouts.
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 that 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 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 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 update the Court with his current address, the
Court has no means by which it can communicate with
Plaintiff. Thus, the Court is unable to move forward with
Plaintiff was given ample time to follow the Court's
directive to submit his prison trust fund account statement,
and Plaintiff has again failed to do so.
the Court should DISMISS Plaintiff's Complaint, (doc. 1),
without prejudice for failure to prosecute and failure to
follow this Court's Orders, and this case should be
Leave to Appeal i ...