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 Order of March 23, 2017, to
inform the Court in writing of any change in address. (Doc.
3.) For the following 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.
who was housed at the Coffee County Jail in Douglas, Georgia,
brought this action pursuant to 42 U.S.C. § 1983 on
March 3, 2017. (Doc. 1.) On March 23, 2017, the Court granted
Plaintiff leave to proceed in forma pauperis. (Doc.
3.) In that Order, the Court stressed that Plaintiff was to
immediately inform the Court of any change of address, and
his failure to do so would result in the dismissal of this
case, without prejudice. (Id. at p. 3.) Plaintiff
submitted his Consent to Collection of Fees and his Prisoner
Trust Account Statement on March 31, 2017, in response to
that Order. (Docs. 5, 6.)
24, 2017, the Court assessed an initial, partial filing fee
and directed Plaintiff's custodian to deduct this amount
from Plaintiff's prison trust account and to forward that
amount to the Clerk of Court. (Doc. 7.) The Clerk of Court
mailed a copy of the Court's Order to Plaintiff at his
last known place of residence, the Coffee County Jail.
However, Captain Kim Phillips with the Coffee County
Sheriff's Office notified the Court by letter dated May
26, 2017, that Plaintiff was no longer housed at the Coffee
County Jail and had not been housed there since March 31,
2017. (Doc. 8.) In addition, the May 24, 2017, Order this
Court sent to Plaintiff was returned as undeliverable. (Doc.
9.) Plaintiff has not notified the Court of his change of
address or made any effort to inform the Court of his
whereabouts. In fact, Plaintiff has failed to file any
pleading with the Court since March 31, 2017.
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 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
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 provide the Court with his updated address, as
directed, the Court 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 made any
filings in this case in over two months' time.
RECOMMEND the Court DISMISS without prejudice Plaintiff's
Complaint, (doc. 1), 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 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 ...