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Herrera v. Federal Bureau of Prisons

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

October 6, 2017

JORGE HERRERA, Petitioner,
v.
FEDERAL BUREAU OF PRISONS, Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Petitioner's failure to comply with the Court's Order to keep the Court apprised of any change in his address. For the following reasons, I RECOMMEND that Petitioner's Petition, (doc. 1), be DISMISSED without prejudice for Petitioner's failure to prosecute and failure to follow the Court's Order. I further RECOMMEND that Petitioner be denied leave to appeal in forma pauperis.

         BACKGROUND

         On July 10, 2017, Petitioner, proceeding pro se, filed a Petition pursuant to 28 U.S.C. § 2241 in the Southern District of Florida. (Doc. 1.) Though Petitioner initially failed to pay the $5.00 filing fee, he did so on July 25, 2017. (Doc. 7.) On July 13, 2017, United States Magistrate Judge Patrick A. White of the Southern District of Florida issued an Order of instructions to Petitioner. (Doc. 3.) Among other things, Judge White instructed Petitioner to advise the Court in writing of any change in Petitioner's address. (Id. at p. 2.) The Order explained to Petitioner that his failure to notify the Court of any change in his address may result in dismissal of his case for lack of prosecution. Id.

         On August 28, 2017, the Southern District of Florida transferred this action to this Court because Petitioner was incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, which is located in this District. (Doc. 9.) On August 30, 2017, this Court mailed a Notice of Case Transfer to Petitioner at his last known place of residence, D. Ray James. (Doc. 12.) However, the mail was returned undeliverable because Petitioner is no longer at the Prison. (Doc. 13.) Petitioner has not notified the Court of his change of address or made any effort to inform the Court of his whereabouts. Indeed, Petitioner has not taken any action in this case since July 25, 2017.

         DISCUSSION

         The Court must now determine how to address Petitioner's failure to comply with the Southern District of Florida's Court's directive to keep the court apprised of any changes in his address. For the reasons set forth below, I recommend that the Petitioner be dismissed and that Petitioner be denied leave to appeal in forma pauperis.

         I. Dismissal for Failure to Prosecute and Failure to Follow a Court Order.

         A district court may dismiss a Petitioner'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.[1] Link v. Wabash Railroad Company, 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. Tallahasse 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 Section 1983 complaint, where Petitioner 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 Petitioners 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 Petitioner failed to follow court order to file amended complaint and court had informed Petitioner that noncompliance could lead to dismissal). With Petitioner having failed to update the Court with his current address, the Court has no means by which it can communicate with Petitioner. Thus, the Court is unable to move forward with this case. Moreover, Petitioner was given ample time to follow the Southern District of Florida's directive, and Petitioner has not made any effort to do so. Indeed, he has not taken any action in this case in over two months. Thus, the Court should DISMISS without prejudice Petitioner's Section 2241 Petition.

         II. Leave to Appeal in Forma Pauperis.

         The Court should also DENY Petitioner leave to appeal in forma pauperis. Though Petitioner 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 filed”).

         An 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. Cnty. 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 ...


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