United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's failure to
comply with the Court's Order of July 24, 2017, to inform
the Court in writing of any potential change in his address.
(Doc. 29.) For the following reasons, I
RECOMMEND the Court DISMISS
Plaintiff's Complaint, (doc. 1), without
prejudice for Plaintiff's failure to follow this
Court's Orders and failure to update his address,
DISMISS as moot Defendant's Motion for
Summary Judgment, (doc. 23), and DIRECT the
Clerk of Court to CLOSE this case. I further
RECOMMEND the Court DENY
Plaintiff leave to appeal in forma pauperis.
filed his Complaint pursuant to 42 U.S.C. § 1983,
contesting certain conditions of his confinement at Georgia
State Prison in Reidsville, Georgia. (Doc. 1.) Concurrently,
Plaintiff filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) In granting that Motion, the Court
forewarned Plaintiff that, “[w]hile this action is
pending, the Plaintiff shall 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. 3, p. 3 (emphasis in
original).) The Court directed service of Plaintiff's
Complaint upon Defendant Hester based on Plaintiff's
contention that Defendant Hester used excessive force against
him. (Doc. 11.) The Court once again advised Plaintiff in its
Order directing service of his Complaint: “Plaintiff is
charged with the responsibility of immediately informing this
Court and defense counsel of any change of address during the
pendency of this action. Local Rule 11.1. Plaintiff's
failure to notify the Court of a change in his address may
result in dismissal of this case.” (Doc. 11, p. 11.)
then filed a Motion for Summary Judgment, (doc. 23), to which
Plaintiff responded, (doc. 25). As part of the materials
submitted in support of his Motion, Defendant provided the
Court with a copy of Plaintiff's deposition. (Doc. 23-5.)
During his deposition, which was taken on August 23, 2016,
Plaintiff testified that he was serving a six (6) year
sentence, had already served more than five years of that
sentence, and would “max out next year.”
(Id. at p. 21.) Based on Plaintiff's deposition
testimony, the Court had reason to believe Plaintiff may no
longer be housed at Georgia State Prison and advised
Plaintiff that, if that were the case, he failed to provide
the Court with an updated address, despite the Court's
directives to notify it of any change in address and
admonitions regarding Plaintiff's failure to do so. (Doc.
29, p. 2.) The Court directed the Clerk of Court to mail a
copy of that Order to Plaintiff at his last known address and
ordered Plaintiff to provide the Court with any change in his
address within fourteen (14) days of that Order, up to and
including August 4, 2017. (Id.) The Court forewarned
Plaintiff that, should he fail to respond to this Order
within this allotted time, the Court would dismiss
Plaintiff's Complaint based on his failure to follow this
Court's Orders. (Id.) This Order was returned to
the Court with the notations “Return to Sender”
and “Not at this address” on the envelope. (Doc.
30, p. 1.) Plaintiff has not responded to the Court's
July 24, Order. In fact, Plaintiff has made no filings in
this case since November 2, 2016, (doc. 25).
Court must now determine how to address Plaintiff's
failure to comply with this Court's directives. For the
reasons set forth below, I RECOMMEND the
Court DISMISS Plaintiff's Complaint
without prejudice, DISMISS as
moot Defendant's Motion for Summary Judgment,
and DENY Plaintiff leave to appeal in
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a plaintiff'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 plaintiff'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 Plaintiff having
failed to provide the Court with any update to his address,
the Court is unable to move forward with this case. In fact,
the Court has no means by which to communicate with
Plaintiff. Additionally, Plaintiff was given ample time to
follow the Court's directive, and Plaintiff has not made
any effort to do so or to inform the Court as to why he
cannot comply with its directives. Indeed, Plaintiff has not
made any filings in this case in over nine (9) months'
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, (doc. 1), for
failure to update his address and failure to follow this
Court's Orders, DISMISS as moot
Defendant's Motion for Summary Judgment, (doc. 23), and
DIRECT the Clerk of Court to
CLOSE this case.
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff 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 ...