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Holmes v. Flournoy

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

October 6, 2017

JOSEPH LEE HOLMES, JR, Petitioner,
v.
WARDEN VICTOR FLOURNOY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon Petitioner Joseph Lee Holmes Jr.'s (“Holmes”) failure to comply with the Court's Order of August 24, 2017, (doc. 7), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS Holmes' action without prejudice for failure to follow the Court's directive and failure to prosecute.[1] I further RECOMMEND that the Court DENY Petitioner leave to appeal in forma pauperis.

         BACKGROUND

         On June 22, 2017, Holmes, who is currently housed at the Federal Correctional Institute in Jesup, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss on August 10, 2017. (Doc. 6.) On August 24, 2017, the Court issued an Order directing Holmes to file any objections to Respondent's Motion to Dismiss within fourteen (14) days. (Doc. 7.) The Court specifically advised Holmes that if he failed to respond, the Court would presume that he does not oppose dismissal of this action. (Id.) Despite this warning, Holmes has entirely failed to respond to Respondent's Motion to Dismiss. Indeed, Holmes has not made any filings in this case since June 22, 2017. (Doc. 1.)

         DISCUSSION

         The Court must now determine how to address Holmes's failure to comply with this Court's Orders, his failure to respond to Respondent's Motion to Dismiss, and his failure to prosecute this action. For the reasons set forth below, I RECOMMEND that the Court DISMISS Holmes's Petition and DENY him 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 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 petitioner'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)).

         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 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 802-03.

         While 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, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Brown, 205 F. App'x at 802-03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         Despite having been advised of his obligation to respond to Respondent's Motion to Dismiss and the consequences for failing to respond, Holmes has not filed any opposition to Respondent's Motion. Additionally, with Holmes not having taken any action in this case for over three months, he has failed to diligently prosecute his claims.

         Thus, the Court should DISMISS Holmes' Section 2241 Petition, (doc. 1), without prejudice, for failure to prosecute, and this case should be CLOSED.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Holmes leave to appeal in forma pauperis. Though Holmes has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal ...


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