United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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.
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.
Dismissal for Failure to Prosecute and Failure to Follow this
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); 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)).
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 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).
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. 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.
the Court should DISMISS without prejudice
Cobble's Petition for failure to prosecute and failure to
follow this Court's Orders.
Leave to Appeal in Forma Pauperis
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
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