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Li v. Garland

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

October 25, 2017

YANG JIE LI, Petitioner,
v.
PATRICK GARLAND, Respondent.

          ORDER AND MAGISTRATE JUDGE'S 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. (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 the Petition.

         BACKGROUND

         On 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 whereabouts.

         DISCUSSION

         The 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 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 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 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. 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 “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, 2009).

         Based 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 ...


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