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Smith v. Dozier

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

August 28, 2017

JAMES EDWARD SMITH, Petitioner,
v.
GREG DOZIER, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner James Edward Smith (“Smith”), who is currently incarcerated at Wheeler Correctional Facility in Alamo, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenge his convictions obtained in the Screven County, Georgia, Superior Court. Respondent filed a Motion to Dismiss, (doc. 9), to which Smith failed to respond. For the following reasons, I RECOMMEND that the Court DISMISS without prejudice Smith's Petition and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court DENY Smith a Certificate of Appealability and DENY Smith leave to appeal in forma pauperis.[1]

         BACKGROUND

         On April 17, 2017, Smith filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) With his Petition, Smith filed a Motion to Proceed in Forma Pauperis. (Doc. 5.) The Court granted this Motion and directed service of Smith's Petition upon Respondent on May 23, 2017. (Docs. 6, 7.) In its Order, the Court advised Smith, “[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. 6, p. 2 (emphasis in original).)

         Respondent filed a Motion to Dismiss on July 21, 2017. (Doc. 9.) On August 1, 2017, the Court issued an Order directing Smith to file any objections to Respondent's Motion to Dismiss within fourteen (14) days. (Doc. 12.) The Court again specifically advised Smith that, if he failed to respond, the Court would presume that he does not oppose the dismissal of this action. (Id.) Despite multiple warnings, Smith still has not filed a response to Respondent's Motion to Dismiss.

         DISCUSSION

         The Court must now determine how to address Smith'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 Smith's Petition and DENY him a Certificate of Appealability and leave to appeal in forma pauperis.

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

         A 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);[2] Coleman v. St. Lucie Cty. Jail, 433 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. at 619; see also Coleman, 433 Fed.Appx. at 719; Brown, 205 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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).

         Despite the Court advising Smith on multiple occasions of his obligation to respond to Respondent's Motion to Dismiss and the consequences for failing to respond, Smith has not filed any opposition to Respondent's Motion. Thus, it is clear that Smith has ignored his obligations to prosecute this case and to follow this Court's directives.

         Accordingly, I RECOMMEND that the Court DISMISS without prejudice Smith's Petition for failure to prosecute and failure to follow this Court's Orders.

         II. Leave to Appeal in Forma Pauperis and ...


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