United States District Court, S.D. Georgia, Statesboro Division
CRAIG A. JORDAN, Plaintiff,
UNIT MANAGER MOBLEY; and DEPUTY WARDEN MCFARLANE, Defendants.
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 to keep the Court apprised
of any change in his address. For the following reasons, the
Court DENIES Plaintiff's Motion for
Leave to Proceed in Forma Pauperis. Additionally, I
RECOMMEND that the Court
DISMISS Plaintiff's Complaint, (doc. 1),
without prejudice for his failure to
prosecute and failure to follow this Court's Order. I
further RECOMMEND that the Court
DENY Plaintiff leave to appeal in forma
10, 2017, Plaintiff filed a Complaint contesting certain
conditions of his confinement pursuant to 42 U.S.C.
§1983. (Doc. 1.) In addition to his Complaint, Plaintiff
filed a Motion to Proceed in Forma Pauperis. (Doc.
2.) On July 20, 2017, the Court deferred ruling on
Plaintiff's Motion and ordered that Plaintiff amend his
Complaint within 14 days of that Order. (Doc. 3.) The Court
further warned that Plaintiff “shall immediately inform
this Court in writing of any change of address” and
that “[f]ailure to do so will result in dismissal of
this case, without prejudice.” (Id. at p. 5.)
Clerk of the Court mailed that Order to Plaintiff at his last
known place of residence, Rogers State Prison. However, the
mail was returned as undeliverable because Plaintiff was
released from the prison. (Doc. 4.) Plaintiff has not
notified the Court of his change of address or made any
effort to inform the Court of his whereabouts. Indeed,
Plaintiff has not taken any action in this case since filing
his Complaint on July 10, 2017.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directive. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS Plaintiff's Complaint
and DENY Plaintiff leave to appeal in
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss an action 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 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.
Moreover, Plaintiff was given ample time to follow the
Court's directive, and he has not made any effort to do
the Court should DISMISS Plaintiff's
Complaint, (doc. 1), without prejudice for
failure to prosecute and failure to follow this Court's
Order, and 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 ...