United States District Court, S.D. Georgia, Waycross 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 directive of April 18, 2017.
(Doc. 5.) For the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's Complaint, (doc.
1), for 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.
April 7, 2017, Plaintiff, proceeding pro se, filed a
Complaint in the Northern District of Georgia contesting
certain conditions of his confinement at Ware State Prison in
Waycross, Georgia. (Doc. 1.) The Northern District of Georgia
transferred Plaintiff's Complaint to the Waycross
Division of this Court. (Doc. 2.) However, Plaintiff did not
pay the required filing fee or move to proceed in forma
pauperis when filing this action. Accordingly, on April
18, 2017, the Clerk of Court directed Plaintiff to either pay
the $400.00 filing fee or file a motion to proceed in
forma pauperis. (Doc. 5.) The Clerk warned Plaintiff
that his failure to comply with that notice may result in
dismissal of this action. Plaintiff has not taken any action
in response to that directive. Indeed, Plaintiff has not made
any filings in this case since his initial Complaint.
Court must now determine how to address Plaintiff's
failure to pay the filing fee and failure to comply with this
Court's directive. For the reasons set forth below, I
RECOMMEND the Court DISMISS without prejudice Plaintiff's
Complaint and DENY Plaintiff leave to appeal in forma
Dismissal for Failure to Prosecute and 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
neither paid the filing fee nor moved to proceed in forma
pauperis, the Court cannot proceed in this case.
See 28 U.S.C. §§ 1914 & 1915.
Moreover, Plaintiff was given ample notice of the
consequences of his failure to follow the Court's
directive, and Plaintiff has not made any effort to do so or
to otherwise prosecute this case.
the Court should DISMISS Plaintiff's Section 1983
Complaint, (doc. 1), without prejudice for failure to
prosecute and DIRECT the Clerk of Court to CLOSE this case.
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff 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
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, either before or after the notice of
appeal is filed, 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