United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
Imare' Franklin (“Franklin”), who is
currently incarcerated at Autry State Prison in Pelham,
Georgia, filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254. Respondent filed a Motion to
Dismiss, (doc. 10), to which Franklin failed to respond. For
the following reasons, I RECOMMEND that the
Court DISMISS without prejudice
Franklin's Petition. I further RECOMMEND
that the Court DISMISS as moot
Franklin's Motion for Production Order, (doc. 8), and
DENY Franklin a Certificate of Appealability
and leave to appeal in forma pauperis.
April 13, 2017, Franklin filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) With his
Petition, Franklin filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) The Court granted this Motion and
directed service of Franklin's Petition on May 23, 2017.
(Docs. 4, 5.) In its Order, the Court advised Franklin,
“[i]f Respondent files a Motion to Dismiss, Petitioner
must file a Response to that Motion
. . . . [I]f Petitioner fails to respond to a Motion to
Dismiss, the Court will presume that Petitioner does not
oppose Respondent's Motion. The Court will dismiss
Petitioner's case[.]” (Doc. 5, p. 3) (emphasis in
filed a Motion to Dismiss on July 20, 2017. (Doc. 10.) On
July 26, 2017, the Court issued an Order directing Franklin
to file any objections to Respondent's Motion to Dismiss
within fourteen (14) days. (Doc. 11.) The Court again
specifically advised Franklin that if he failed to respond,
the Court would presume that he does not oppose the dismissal
of this action. (Id.) Despite these multiple
warnings, Franklin still has not filed a response to
Respondent's Motion to Dismiss.
Court must now determine how to address Franklin's
failure to comply with this Court's Orders and his
failure to respond to Respondent's Motion to Dismiss. For
the reasons set forth below, I RECOMMEND
that the Court DISMISS Franklin's
Petition and DENY him a certificate of
appealability and 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 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 advising Franklin on multiple occasions of his
obligation to respond to Respondent's Motion to Dismiss
and the consequences for failing to respond, Franklin has not
filed any opposition to Respondent's Motion. Thus, it is
clear that Franklin has ignored his obligations to prosecute
this case and to follow this Court's directives.
I RECOMMEND that the Court
DISMISS Franklin's Petition
without prejudice, for failure to prosecute
and failure to follow this Court's Orders.
Leave to Appeal in Forma Pauperis and ...