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Bentley v. Kight

United States District Court, S.D. Georgia, Statesboro Division

May 12, 2017

ANTHONY JEROME BENTLEY, Plaintiff,
v.
ALVIE KIGHT; TOOMBS COUNTY DETENTION CENTER; KATHY PALMER; GABRIEL T. CLIETT; TOOMBS COUNTY, GEORGIA; HAYWARD ALTMAN; and AMANDA HART, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This 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 forma pauperis.

         BACKGROUND

         In his 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.)

         The 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.

         (Doc. 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. (Doc. 5.)

         DISCUSSION

         The 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);[1] 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)).

         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 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.

         Thus, I 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”).

         An 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, 2009).

         Based 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 ...


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