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 the Court's Order of March 31, 2017, to file
an appropriate Amended Complaint. (Doc. 9.) For the following
reasons, the Court DENIES Plaintiff's Motion to Proceed
in Forma Pauperis. (Doc. 2.) For these same 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
Complaint, which was submitted on a handwritten form,
Plaintiff asserted Defendants Kight and the Toombs County
Detention Center violated his First Amendment rights by
failing to provide Plaintiff with a copy of the Detention
Center's handbook so that he could know the rules and
regulations at the Detention Center. (Doc. 1, p. 11.)
Plaintiff alleged the religious materials he ordered were
either thrown away upon arrival at the Detention Center or
his request was not sent to the headquarters for his
religion. According to Plaintiff, Defendant Hart handled the
inmate mail and “has been known to hold and
mishandle” mail. (Id.) Plaintiff maintained he
has not been allowed to freely exercise his religious beliefs
since he is not allowed to receive his requested religious
materials. Plaintiff contended Defendant Hart informed him
that he could not have access to a law library and should
instead request certain materials from her, which could take
anywhere from ten (10) days to four (4) months to reach him,
if at all. (Id. at p. 12.) Plaintiff stated that his
legal mail was tampered with because he received an envelope
containing legal mail that had been opened and then was
re-sealed with tape. (Id.) Additionally, Plaintiff
asserted he has been subjected to cruel and unusual
punishment because he has not received personal hygiene items
and other minimum necessities. (Id.) Plaintiff also
set forth various claims relating to his ongoing criminal
proceedings in the Toombs County Superior Court.
(Id. at pp. 13-18.)
Court directed Plaintiff to file an Amended Complaint using
the form complaint prisoners are to use when filing 42 U.S.C.
§ 1983 causes of action in this Court and directed the
Clerk of Court to provide Plaintiff with a blank prisoner
civil rights complaint form. (Doc. 9, p. 4.) The Court
advised Plaintiff that the claims he set forth were not
related to each other and that he could not join these claims
in one action unless he showed that his claims arose from
“the same transaction or occurrence or series of
related transactions or occurrences[.]” (Id.
(quoting Fed.R.Civ.P. 20(a).) The Court cautioned Plaintiff
that, should he fail to file an appropriate Amended
Complaint, his cause of action would be dismissed for failure
to prosecute and failure to follow this Court's Orders.
(Id. at p. 6.) The Court mailed that Order to
Plaintiff at the most recent address it has for him, and the
Order was returned to the Court as undeliverable.
10.) The Court has not received any pleading from Plaintiff
since he submitted a letter to a United States Magistrate
Judge in the Middle District of Georgia on December 27, 2016.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directive. 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.
I.Dismissal for Failure to Prosecute and Failure to Follow
this Court's Order A 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 file an Amended Complaint setting forth claims that
arose from the same transaction or occurrence or series of
related transactions or occurrences, the Court is unable to
move forward with this case. Additionally, the Court has no
means by which it can communicate with Plaintiff and is
unable to move forward with this case. 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. Indeed,
Plaintiff has not taken any action in this case in more than
five months' time.
RECOMMEND the Court DISMISS without prejudice Plaintiff's
Complaint, (doc. 1), for failure to prosecute and failure to
follow this Court's Order and DIRECT the Clerk of Court
to CLOSE this case. II. Leave to Appeal in Forma
Pauperis The 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 is not taken in good faith “before or
after the notice of appeal is filed”).
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). Stated
another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is
“without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
2002); see also Brown v. United States, Nos.
407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9,
on the above analysis of Plaintiff's action, there are no
non-frivolous issues to raise on appeal, and an appeal would
not be taken in good faith. Thus, the Court ...