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Cobble v. Allen

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

October 13, 2017

DANIEL ERIC COBBLE, Petitioner,
v.
WARDEN MARTY ALLEN, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner Daniel Eric Cobble (“Cobble”), an inmate at Georgia State Prison in Reidsville, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) For the reasons set forth below, the Court DENIES Cobble's Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) In addition, I RECOMMEND the Court DISMISS without prejudice Cobble's Petition for failure to prosecute and failure to follow this Court's Order, DIRECT the Clerk of Court to CLOSE this case, and DENY Cobble leave to appeal in forma pauperis.

         BACKGROUND

         Cobble filed his Petition along with a Motion for Leave to Proceed in forma pauperis on June 16, 2017, in the United States District Court for the District of Columbia. (Docs. 1, 2.) Cobble's Petition was transferred to this Court, and on August 25, 2017, the Court deferred ruling on Cobble's in forma pauperis Motion and directed Cobble to file an Amended Petition. (Doc. 6.) Cobble's original Petition was “illegible and incomprehensible, ” and “[i]n its current form, the Court [could not] determine the circumstances surrounding Cobble's detention or the relief he seeks.” (Id. at p. 1.) Additionally, the Court directed Cobble to file a new Motion for Leave to Proceed in Forma Pauperis because his original filing was unresponsive to the form's questions. (Id. at pp. 1-2.) However, Plaintiff failed to file either an Amended Petition or an appropriate Motion for Leave to Proceed in Forma Pauperis.

         DISCUSSION

         I. Dismissal for Failure to Prosecute and Failure to Follow this Court's Orders

         A district court may dismiss 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);[1] 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 Section 1983 complaint, where plaintiff 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 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 F. App'x 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).

         The Court ordered Cobble to file an appropriate Motion to Proceed in Forma Pauperis and to amend his Petition. However, Cobble failed to file either of these documents. With Cobble having failed to file a response to this Court's Order, the Court is unable to move forward with this case. Furthermore, the Court has no means to collect the filing fees in this case, as required by Rule 3 of the Rules Governing Section 2254 Petitions.[2] Cobble was provided ample time to follow the Court's directives, but Cobble has not made any effort to do so or to inform the Court as to why he cannot comply. Indeed, Cobble has not taken any action in this case since filing his Petition and Motion with the United States District Court for the District of Columbia on June 16, 2017.

         Accordingly, the Court should DISMISS without prejudice Cobble's Petition for failure to prosecute and failure to follow this Court's Orders.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Cobble leave to appeal in forma pauperis. Though Cobble 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. 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). Stated another way, an in forma pauperis action is frivolous and thus, not brought in good faith, if it is ...


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