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 28, 2017, to
furnish the Court with his prison trust fund account
statement and his consent to collection of fees from that
account. (Doc. 8.) For the following reasons, I
RECOMMEND that Plaintiff's Complaint and
Amended Complaint, (docs. 1, 6), be DISMISSED without
prejudice for Plaintiff's failure to follow this
Court's Orders and failure to prosecute. I further
RECOMMEND that Plaintiff be denied leave to
appeal in forma pauperis.
an inmate at Augusta State Prison in Grovetown, Georgia,
brought this action pursuant to 42 U.S.C. § 1983
contesting certain conditions of his confinement at Georgia
State Prison in Reidsville, Georgia. (Doc. 1.) On July 28,
2017, the Court granted Plaintiff leave to proceed in
forma pauperis. (Doc. 8.) In that Order, the Court
instructed Plaintiff to furnish the Court with his 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 respond to the
Court's Order by August 28, 2017, 2015, the Court would
dismiss this case. (Id. at p. 4.) The Court mailed
that Order to Plaintiff at the most recent address it has for
him. (Doc. 4.) However, the Court has not received any
pleading from Plaintiff since that Order. Indeed, Plaintiff
has not taken any action in this case after filing this
Amended Complaint more than two months ago.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directive. For the
reasons set forth below, I recommend that the Complaint be
dismissed and that Plaintiff be denied leave to appeal in
Dismissal 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 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). With Plaintiff having
failed to provide the Court with his prison trust fund
account statement and his consent to collection of fees, the
Court has no means to collect the filing fees in this case as
required by 28 U.S.C. § 1915(b)(1). Furthermore, with
Plaintiff not having taken any action on this case in over
two months, he has failed to diligently prosecute his claims.
Thus, Plaintiff has demonstrated a clear record of delay and
disregard for this Court's Orders, and a sanction other
than dismissal would not suffice to remedy his deficiencies.
Plaintiff's Complaint, (doc. 1), should be
DISMISSED without prejudice for failure to
prosecute and failure to follow this Court's Order, and
this case should be CLOSED.
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 is not taken in good
faith “before or after the notice of appeal is
appeal cannot be taken in forma pauperis if the
trial court certifies that the appeal is not taken in good
faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
Good faith in this context must be judged by an objective
standard. Busch v. Cty. of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith
when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated
another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is