United States District Court, S.D. Georgia, Brunswick 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 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.
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.
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). 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
the Court should DISMISS Plaintiff's
Complaint without prejudice for failure to
prosecute and failure to follow this Court's Orders.
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 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”).
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,
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 ...