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 upon Petitioner Dieufete
D'Jeff Coriolan's (“Coriolan”) failure to
comply with the Court's Order of June 15, 2017, (doc. 6),
and his failure to prosecute this action. For the following
reasons, I RECOMMEND that the Court DISMISS Coriolan's
action without prejudice for failure to follow the
Court's directive and failure to prosecute. I further
RECOMMEND that the Court DENY Coriolan leave to appeal in
30, 2017, Coriolan, a detainee previously housed at the
Immigration and Customs Enforcement (“ICE”)
Facility, in Folkston, Georgia filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.)
The Court directed service on June 15, 2017, and ordered
Coriolan to “immediately inform this Court in writing
of any change of address. Failure to do so will result in
dismissal of this case, without prejudice.” (Doc. 6, p.
2.) However, on June 22, 2017, the Court's Order was
returned as undeliverable because Coriolan was released from
the ICE Facility. (Doc. 8.) Coriolan has not made any filing
in this case since filing his Petition on May 30, 2017, (doc.
1), and has not notified the Court of any change of his
Court must now determine how to address Coriolan's
failure to comply with this Court's Order and failure to
prosecute this action. For the reasons set forth below, I
RECOMMEND that the Court DISMISS Coriolan's Petition and
DENY him leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Follow this
district court may dismiss a petitioner's claims for
failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) and 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
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, where plaintiff did not respond to court order to
supply defendant's current address for purpose of
service); Brown, 205 F.App'x at 802-03
(upholding dismissal without prejudice for failure to
prosecute, where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal). With Coriolan having
failed to update the Court with his current address, the
Court has no means by which it can communicate with him.
Thus, the Court is unable to move forward with this case.
Furthermore, Coriolan has failed to diligently prosecute his
claims-he has not taken any action in this case since filing
the Court should DISMISS Coriolan's Section 2241
Petition, (doc. 1), without prejudice, and CLOSE this case
for failure to prosecute and failure to follow this
Leave to Appeal in Forma Pauperis
Court should also deny Coriolan leave to appeal in forma
pauperis. Though Coriolan has, of course, not yet filed
a notice of appeal, it would be appropriate to address that
issue in the Court's order of dismissal. See
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal
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, either before or after the notice of
appeal is filed, 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). Or, stated
another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is