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 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.)
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
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.
Dismissal for Failure to Prosecute and Failure to Follow this
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); 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)).
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 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
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.
Leave to Appeal in Forma Pauperis
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
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 ...