United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff'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 the Court
DISMISS Plaintiff's Complaint, (doc. 1),
without prejudice for Plaintiff's
failure to prosecute and failure to follow this Court's
Orders. I further RECOMMEND that the Court
DENY Plaintiff leave to appeal in forma
pauperis and DIRECT the Clerk of Court
to CLOSE this case.
15, 2017, Plaintiff, proceeding pro se, filed a
Complaint contesting the conditions of his confinement
pursuant to 42 U.S.C. § 1983. (Doc. 1.) With his
Complaint, Plaintiff filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) On June 29, 2017, the Court granted
that Motion and directed Plaintiff to submit properly filled
out Trust Account Statement and Consent to Collection of Fees
from Trust Account forms. (Doc. 4.) In that Order, the Court
also ordered Plaintiff to immediately inform this Court in
writing of any change in his address. (Id. at p. 3.)
The Court emphasized that, should Plaintiff fail to comply
with this directive, the Court would dismiss his case.
Clerk of Court mailed a copy of this Order to Plaintiff at
his last known place of residence, Rogers State Prison in
Reidsville, Georgia. Plaintiff then timely submitted his
Consent to Collection of Fees, (doc. 5), but failed to also
submit the required Trust Account Statement. On September 28,
2017, the Court provided Plaintiff with one more opportunity
to properly fill out and return the Trust Account Statement
and advised him that failure to return it on or before
October 12, 2017, would result in dismissal of his case.
(Doc. 6.) The Clerk of Court mailed a copy of this Order to
Rogers State Prison. On October 19, 2017, however, the mail
was returned as undeliverable because Plaintiff is no longer
located there. (Doc. 7.)
has not notified the Court of his change of address or made
any effort to inform the Court of his whereabouts. Indeed,
Plaintiff has not taken any action in this case since he
filed his Consent to Collection of Fees form over two months
Court must now determine how to address Plaintiff's
failure to comply with this Court's directive. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS Plaintiff's Complaint
without prejudice and DENY
Plaintiff leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a plaintiff'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 R.R. Co., 370 U.S. 626 (1962); Coleman v.
St. Lucie Cty. Jail, 433 Fed.Appx. 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 plaintiff'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
Fed.Appx. 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.”). 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. at 619; see also
Coleman, 433 Fed.Appx. at 719; Brown, 205
Fed.Appx. at 802-03.
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action without prejudice is
warranted. See Coleman, 433 Fed.Appx. 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
Fed.Appx. 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 Fed.Appx. 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). With Plaintiff having
failed to update the Court with his current address, the
Court has no means by which it can communicate with
Plaintiff. Thus, the Court is unable to move forward with
this case. Moreover, Plaintiff has failed to diligently
prosecute his claims, as he has not taken any action in this
case in over two months. Indeed, Plaintiff failed to timely
submit his Trust Account Statement despite the Court
specifically warning him that failure to do so would result
in dismissal of his case.
the Court should DISMISS Plaintiff's
Complaint without prejudice.
Leave to Appeal i ...