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Hutcheson v. Ferra

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

August 17, 2017

JAMIE HUTCHESON, Plaintiff,
v.
GEORGE FERRA, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff's failure to comply with the Court's directive of May 30, 2017, to furnish the Court with his prison trust fund account statement and his consent to collection of fees from that account. (Doc. 2.) For the following reasons, I RECOMMEND the Court DISMISS Plaintiff's Complaint without prejudice, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         Plaintiff, currently housed at Phillips State Prison in Buford, Georgia, brought this action pursuant to 42 U.S.C. § 1983 for events that allegedly occurred in the Glynn County Detention Center in Brunswick, Georgia. (Doc. 1.) Plaintiff did not pay the requisite filing fee or move to proceed in forma pauperis when filing this action. Accordingly, on May 30, 2017, the Clerk of Court directed Plaintiff to either pay the $400.00 filing fee or file a motion to proceed in forma pauperis. (Doc. 2.) The Clerk warned Plaintiff that failure to comply could result in dismissal of this action. The Court received no information indicating this Notice failed to reach Plaintiff or was otherwise undeliverable. However, the Court still has not received any pleading or filing fee from Plaintiff since that Notice.

         DISCUSSION

         I. Dismissal for Failure to Prosecute and Failure to Follow this Court's Order

         A 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)[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 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)).

         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). The Court ordered Plaintiff to file an appropriate Motion to Proceed in Forma Pauperis or to pay the full filing fee. (Doc. 2.) Moreover, the Court specifically notified Plaintiff that failure to do so could result in dismissal of his case. (Id.) However, Plaintiff failed to take either of those actions. Consequently, the Court has no means to collect the filing fees in this case, as required by 28 U.S.C. § 1915(b)(1). By failing to pay the requisite filing fee or submitting a motion to proceed in forma pauperis, Plaintiff has failed to diligently prosecute his claims, and he has failed to follow this Court's Order.

         Accordingly, the Court should DISMISS Plaintiff's Complaint without prejudice for failure to prosecute and failure to follow this Court's Orders.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Plaintiff leave to appeal in forma pauperis.[2] Though Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. 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”).

         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. Williams, 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 “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).

         Based on the above analysis of Plaintiff's action, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court ...


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