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 Order of July 13, 2017, to
furnish the Court with his prison trust fund account
statement and his consent to collection of fees from that
account. (Doc. 3.) For the following reasons, I
RECOMMEND the Court DISMISS
Plaintiff’s Complaint, (doc. 1), without
prejudice for Plaintiff’s failure to follow
this Court’s Order and failure to prosecute and
DIRECT the Clerk of Court to
CLOSE this case. I further
RECOMMEND the Court DENY
Plaintiff leave to appeal in forma pauperis.
who is housed at Smith State Prison in Glennville, Georgia,
brought this action pursuant to 42 U.S.C. § 1983 on June
26, 2017. (Doc. 1.) Concurrently, Plaintiff filed a Motion
for Leave to Proceed in Forma Pauperis. (Doc. 2.) On
July 13, 2017, the Court granted Plaintiff’s Motion.
(Doc. 3.) In that Order, the Court instructed Plaintiff to
furnish the Court with a 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 pp. 2–3.) The Court explained that, if
Plaintiff failed to complete and return these forms or
otherwise respond to the Court’s directives by August
14, 2017, the Court would dismiss this case without prejudice
for failure to prosecute and follow this Court’s
Orders. (Id. at p. 4.)
13, 2017, the Clerk of Court mailed a copy of the
Court’s Order to Plaintiff at his last known place of
incarceration, and the Order was not returned to the Court as
undeliverable or otherwise failing to reach Plaintiff.
However, the Court has not received any pleading from
Plaintiff which is responsive to that Order. In fact,
Plaintiff has not filed any pleading with this Court since
June 26, 2017, (docs. 1, 2).
Court must now determine how to address Plaintiff’s
failure to comply with this Court’s directives. For the
reasons set forth below, I RECOMMEND the
Court DISMISS Plaintiff’s Complaint
without prejudice and DENY
Plaintiff leave to appeal in forma pauperis.
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
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 consent to collection of fees and his trust account
statement, as directed, the Court is unable to move forward
with this case, as it cannot collect the required statutory
fees. See 28 U.S.C. § 1915. Moreover, Plaintiff
was given ample time to follow the Court’s directive,
and Plaintiff has not made any effort to do so or to inform
the Court as to why he cannot comply with its directives.
Plaintiff has failed to file any pleading with the Court
since June 26, 2017.
RECOMMEND the Court DISMISS without
prejudice Plaintiff’s Complaint, (doc. 1), for
failure to prosecute and failure to follow this Court’s
Order 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 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 ...