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Shaw v. Tillman

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

August 25, 2017

WAYMON DEONTAE SHAW, Plaintiff,
v.
ANTHONY L. TILLMAN; and JOEY COLEMAN, Defendants.

          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 Order of July 21, 2017, to furnish the Court with his prison trust fund account statement. (Doc. 15.) For the following reasons, I RECOMMEND that the Court DISMISS Plaintiff's Complaint, (doc. 1), without prejudice for Plaintiff's failure to follow this Court's Orders and failure to prosecute and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         Plaintiff, an inmate at the Appling County Detention Center in Baxley, Georgia, brought this action pursuant to 42 U.S.C. § 1983 on May 30, 2017. (Doc. 1.) In addition to his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis, (doc. 2). On June 29, 2017, the Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 10.) In that Order, the Court instructed Plaintiff to furnish the Court with his statement of his prison trust fund account and the consent to collection of fees from that account pursuant to 28 U.S.C. § 1915(b)(1). (Id. at p. 3.) The Court explained that, if Plaintiff failed to respond to the Court's Order by July 31, 2017, the Court would dismiss this case. (Id. at p. 4.) Plaintiff timely returned his consent to collection of fees form, (doc. 13), but returned a noncompliant prison trust fund account form, (doc. 14). On July 21, 2017, the Court gave Plaintiff an additional twenty-one (21) days to return a properly completed prison trust fund account form. (Doc. 15.) The Court mailed that Order to Plaintiff at the most recent address it has for him. However, the Court has not received any pleading from Plaintiff since that Order. Indeed, Plaintiff has not taken any action in this case since returning a noncompliant prisoner trust fund account statement over one month ago.

         DISCUSSION

         The 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 without prejudice and DENY Plaintiff leave to appeal in forma pauperis.

         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). With Plaintiff having failed to provide the Court with his prison trust fund account statement, the Court has no means to collect the filing fees in this case, as required by 28 U.S.C. § 1915(b)(1). Furthermore, with Plaintiff not having taken any action on this case in over one month, he has failed to diligently prosecute his claims. Thus, Plaintiff has demonstrated a clear record of delay and disregard for this Court's Orders, and a sanction other than dismissal would not suffice to remedy his deficiencies.

         Thus, the Court should DISMISS Plaintiff's Complaint, (doc. 1), without prejudice and DIRECT the Clerk of Court to CLOSE this case for failure to prosecute and failure to follow this Court's Order.

         II. Leave to Appeal in Forma Pauperis

         The 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 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). Or, stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith, if it is ...


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