United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
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. (Doc. 2, p. 2.) For the
following reasons, I RECOMMEND that the
Court DISMISS Petitioner's Petition,
(doc. 1), without prejudice for
Petitioner's failure to prosecute and failure to follow
this Court's Order. I further RECOMMEND
that Petitioner be denied leave to appeal in forma
pauperis. Moreover, the Court STAYS the
deadline for Respondent to show cause as to why the Court
should not grant Petitioner's writ set forth in the
Court's October 6, 2017 Order, (doc. 2). Given that the
Petition is due to be dismissed for Petitioner's
non-compliance, the Respondent need not file any response to
September 15, 2017, Petitioner, then a detainee at Folkston
ICE Processing Center in Folkston Georgia filed a pro
se Petition pursuant to 28 U.S.C. § 2241. (Doc. 1.)
The record reflects that Petitioner paid the $5.00 filing
fee. On October 6, 2017, the Court Ordered the United States
Marshal to serve Respondent Patrick Garland with a copy of
the Petition and to show cause as to why the Court should not
grant Petitioner the relief he seeks in his Petition. (Doc.
2.) In that Order, the Court cautioned Petitioner “that
while this action is pending, Petitioner shall immediately
inform this Court in writing of any change of address.
Failure to do so will result in dismissal of this
case.” (Id. at p. 2.) On October 13, 2017, the
copy of the Order that the Clerk of Court sent to Petitioner
was returned as undeliverable, because Petitioner is no
longer at the ICE Processing Center in Folkston. (Doc. 3.)
Petitioner has not notified the Court of his change of
address or made any effort to inform the Court of his
Court must now determine how to address Petitioner's
failure to comply with the Court's directive to keep the
court apprised of any changes in his address and his failure
to diligently prosecute this case. 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 a deficient amended complaint rather than
complying, or seeking an extension of time to comply, with
court's order to file a 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 a court order
to file an amended complaint and the 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 Court's directive, and Petitioner has not made
any effort to do so. Thus, the Court should DISMISS
without prejudice Petitioner's Section 2241
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.
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
“without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
2002); see also Brown v. United States, Nos.
407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9,
on the above analysis of Petitioner's action, there are
no non-frivolous issues to raise on appeal, and an appeal
would not be taken in good faith. Thus, the Court should