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Weston v. Hall

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

June 22, 2017

WILLIAM H. WESTON, JR., Petitioner,
v.
WARDEN HILTON HALL; and COMMISSIONER HOMER BRYSON, Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Petitioner William Weston's (“Weston”) failure to comply with the Court's directive of May 22, 2017. (Doc. 2.) For the following reasons, I RECOMMEND the Court DISMISS without prejudice Weston's Petition, (doc. 1), for failure to prosecute and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY Weston leave to appeal in forma pauperis and a Certificate of Appealability.

         BACKGROUND

         On May 22, 2017, Weston, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) However, Weston did not pay the required filing fee or move to proceed in forma pauperis when filing this action. Accordingly, on May 22, 2017, the Clerk of Court directed Weston to either pay the $5.00 filing fee or file a motion to proceed in forma pauperis. (Doc. 2.) The Clerk warned Weston that his failure to comply with that notice may result in dismissal of this action. Weston has not taken any action in response to that directive. Indeed, Weston has not made any filings in this case since he filed his Petition.

         DISCUSSION

         The Court must now determine how to address Weston'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 Weston's Petition and DENY Weston leave to appeal in forma pauperis and a Certificate of Appealability.

         I. Dismissal for Failure to Prosecute and Follow this Court's Order

         A district court may dismiss a petitioner'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 petitioner'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)); Allen v. Tatum, No. CV414-169, 2014 WL 5308010, at *1 (S.D. Ga. Sept. 22, 2014) (dismissing Section 2254 petition where petitioner failed to prosecute and citing Local Rules 11.1 and 41(b)). 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 Weston 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, Weston was given ample notice of the consequences of his failure to follow the Court's directive, and Weston has not made any effort to do so or to otherwise prosecute this case.

         Thus, the Court should DISMISS Weston's Section 2254 Petition, (doc. 1), without prejudice for failure to prosecute and DIRECT the Clerk of Court to CLOSE this case.

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

         The Court should also deny Weston leave to appeal in forma pauperis and deny him a Certificate of Appealability (“COA”). Though Weston has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the district court must issue or deny a certificate of appealability when it issues a final order adverse to the applicant.” (emphasis supplied); see also 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 ...


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