United States District Court, S.D. Georgia, Statesboro 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 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.
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.
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.
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
Dismissal for Failure to Prosecute and 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
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.
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.
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 that
issue in the Court's order of dismissal. See
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal