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 to keep the Court apprised
of any change in his address and failure to amending his
Complaint as ordered by the Court. For the following reasons,
the Court DENIES Plaintiff's Motion to
Proceed in Forma Pauperis. (Doc. 2.) Further, I
RECOMMEND that the Court
DISMISS Plaintiff's Complaint, (doc. 1),
without prejudice for Plaintiff's
failure to prosecute and failure to follow this Court's
Order. I further RECOMMEND that the Court
DENY Plaintiff leave to appeal in forma
proceeding pro se, filed this lawsuit contesting
certain conditions of his confinement while housed at Rogers
State Prison in Reidsville, Georgia. (Doc. 1.) With his
Complaint, Plaintiff filed a Motion to Proceed in forma
pauperis. (Doc. 2.) The Court deferred ruling on that
Motion on July 21, 2017. (Doc. 4.) The Court directed
Plaintiff to amend his Complaint using the proper Section
1983 form. Id. Additionally, the Court directed
Plaintiff to advise the Court in writing of any change in his
address. The Court emphasized that, should Plaintiff fail to
comply with these directives, the Court would dismiss his
Court mailed that Order to Plaintiff at Rogers State Prison,
the only address that it had for Plaintiff. On July 31, 2017,
the Court's Order was returned as undeliverable with a
notation of “Dooly S.P.” on the envelope. (Doc.
5.) Thus, on that same date, the Court mailed the Court's
July 21, 2017, Order and the Section 1983 form to Plaintiff
at Dooly State Prison. That mailing has not been returned to
the Court as undeliverable. However, Plaintiff has not
submitted an amended complaint or change of address notice to
the Court. Indeed, Plaintiff has not taken any action in this
case since July 7, 2017.
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 that
the Court DISMISS Plaintiff's Complaint
and DENY Plaintiff 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 update the Court with his current address, the
Court has no means by which it can communicate with
Plaintiff. Further, Plaintiff has not submitted an amended
complaint, and, thus, the Court cannot assess the viability
of his claims. Thus, the Court is unable to move forward with
this case. Moreover, Plaintiff was given ample time to follow
the Court's directives, and Plaintiff has not made any
effort to do so. Additionally, Plaintiff has not taken any
action in this case in over eight months.
the Court should DISMISS Plaintiff's
Complaint, (doc. 1), 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 ...