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 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
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.
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.
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). 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.
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.
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 is not taken in good
faith “before or after the notice of appeal is
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