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Grogan v. Bryson

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

August 25, 2017

TYLER GROGAN, Plaintiff,
v.
HOMER BRYSON; WARDEN DOUG WILLIAMS; TYRONE SMITH; JORDAN WICKER; UNIT MANAGER ERIC SMOKES; DERIC GODFREY; KARL WILLIAMS; EYVETTE COOK; and FNU DOVER, 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 directive of June 15, 2017. (Doc. 6.) For the following reasons, I RECOMMEND the Court DISMISS Plaintiff's Complaint, (doc. 1), without prejudice for failure to prosecute and failure to follow this Court's Orders and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         On February 27, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain conditions of his confinement while housed at Smith State Prison in Glennville, Georgia. (Doc. 1.) Plaintiff did not pay the required filing fee or move to proceed in forma pauperis when filing this action. Accordingly, on February 27, 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 his failure to comply with that notice may result in dismissal of this action.

         When Plaintiff failed to return a motion to proceed in forma pauperis or to pay the filing fee, the undersigned issued a Report and Recommendation to dismiss Plaintiff's Complaint. (Doc. 3.) However, Plaintiff timely filed an Objection in which he alleged that, although he drafted and submitted an in forma pauperis motion, prison authorities failed to mail that motion. (Doc. 5.) In an abundance of caution, the Court vacated its May 3, 2017, Report and Recommendation, (doc. 3), on June 15, 2017, and ordered Plaintiff to pay the requisite filing fee or to submit a motion to proceed in forma pauperis within fourteen (14) days of the date of that Order. Plaintiff has again failed to submit an in forma pauperis motion or to pay the requisite filing fee.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to pay the filing fee and 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 him leave to appeal in forma pauperis.

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

         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 neither paid the filing fee nor moved to proceed in forma pauperis, the Court cannot proceed in this case. See 28 U.S.C. §§ 1914 & 1915. Moreover, Plaintiff was given ample notice of the consequences of his failure to follow the Court's directive, and Plaintiff has not made any effort to do so or to otherwise prosecute this case.

         Thus, the Court should DISMISS Plaintiff's Section 1983 Complaint, (doc. 1), without prejudice for failure to prosecute and failure to follow this Court's Orders and DIRECT the Clerk of Court to CLOSE this case.

         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 would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal ...


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