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DI v. Moore

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

July 11, 2017

LI CHUAN DI, Petitioner,
v.
MICHAEL MOORE, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Petitioner Li Chuan Di's (“Di”) failure to comply with the Court's Order of May 22, 2017, to re-submit his application to proceed in forma pauperis on the Court's preferred forms. (Doc. 3.) For the following reasons, I RECOMMEND the Court DISMISS Di's Petition, (doc. 1), without prejudice for his 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 Di leave to appeal in forma pauperis. The Court DISMISSES as moot Di's Motion for Leave to Proceed in Forma Pauperis in this Court. (Doc. 2.)

         BACKGROUND

         Di, who is housed at the Folkston ICE Processing Center in Folkston, Georgia, brought this action pursuant to 28 U.S.C. § 2241 on May 17, 2017. (Doc.1.) Di also filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) On May 22, 2017, this Court deferred ruling on Di's Motion for Leave to Proceed in Forma Pauperis. (Doc. 3.) The Court directed Di to re-submit his application to proceed in forma pauperis on the Court's preferred forms and directed the Clerk of Court to provide Di with blank copies of those forms. (Id. at p. 1.) The Court cautioned Di that, should he fail to comply with this Court's directive in a timely manner, his Petition could be dismissed, without prejudice. (Id.) The Court mailed that Order to Di at the most recent address it has for him, and the Order was not returned to the Court as undeliverable or as otherwise failing to reach Di. The Court has not received any pleading from Di since that Order. Indeed, Plaintiff has not taken any action in this case since he originally filed his Petition and Motion to Proceed in Forma Pauperis.

         DISCUSSION

         The Court must now determine how to address Di's failure to comply with this Court's directive. For the reasons set forth below, I RECOMMEND the Court DISMISS Di's Petition without prejudice, DIRECT the Clerk of Court to CLOSE this case, and DENY Di 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 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)). 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 Di having failed to file a response to this Court's Order, the Court is unable to move forward with this case. Moreover, Di was given ample time to follow the Court's directives, and Di has not made any effort to do so or to inform the Court as to why he cannot comply with its directives. Indeed, Di has not taken any action in this case since filing his Petition and Motion for Leave to Proceed in Forma Pauperis on May 17, 2017.

         Thus, I RECOMMEND the Court DISMISS without prejudice Di's Petition, (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 Di leave to appeal in forma pauperis. Though Di 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. Di, 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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