United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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
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
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
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.
Dismissal for Failure to Prosecute and Follow this
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); 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)).
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.
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).
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.
I RECOMMEND that the Court DISMISS
without prejudice Smith's Petition for failure
to prosecute and failure to follow this Court's Orders.
Leave to Appeal in Forma Pauperis and ...