United States District Court, S.D. Georgia, Waycross Division
ORDER AND REPORT AND RECOMMENDATION
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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
Dismissal for Failure to Prosecute and Failure to Follow 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. Link v.
Wabash Railroad Company, 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 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)).
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.
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.
Leave to Appeal in Forma Pauperis.
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”).
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