United States District Court, S.D. Georgia, Waycross Division
WILLIAM H. WESTON, JR., Petitioner,
WARDEN HILTON HALL; and COMMISSIONER HOMER BRYSON, Respondents.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
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
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.
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.
Dismissal for Failure to Prosecute and Follow this
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); 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)).
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 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.
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.
Leave to Appeal in Forma Pauperis and Certificate of
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”).
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