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 of July 31, 2017. (Doc. 5.)
For the following reasons, I RECOMMEND the
Court DISMISS without prejudice
Plaintiff's Complaint, (doc. 1), for failure to prosecute
and to follow this Court's Order. I also
RECOMMEND the Court DIRECT
the Clerk of Court to CLOSE this case and
enter the appropriate judgment of dismissal and
DENY Plaintiff leave to appeal in forma
who is incarcerated at Coffee Correctional Facility in
Nicholls, Georgia, filed a Complaint pursuant to 42 U.S.C.
§ 1983 to contest certain conditions of his confinement
while he was housed at Rogers State Prison in Reidsville,
Georgia. (Doc. 1.) Plaintiff also filed a Motion to Proceed
in Forma Pauperis. (Doc. 2.) This Court deferred
ruling on Plaintiff's Motion to Proceed in Forma
Pauperis by Order dated July 31, 2017, because Plaintiff
submitted an Application to Proceed in Forma
Pauperis on a form other than that which this Court
prefers its prisoner-plaintiffs to use. (Doc. 5.) The Court
directed Plaintiff to re-submit his application within
fourteen (14) days of that Order and advised that
“his failure to timely comply with this Court's
directive may result in the dismissal of his Complaint for
failure to follow a Court Order and failure to
prosecute.” (Id. at p. 5 (emphasis in
original).) In that same Order, the Court deferred its
requisite frivolity review of Plaintiff's Complaint. The
Court directed Plaintiff to amend his Complaint using the
Court's preferred form complaint. (Id.) The
Court advised Plaintiff his claims were not related to each
other, that he must set forth allegations in his Amended
Complaint indicating that his constitutional rights had been
violated and by whom those rights had been violated, and that
he failed to make any factual allegations against the named
Defendants. (Id.) In this regard, the Court provided
Plaintiff with specific instructions as to how he should
amend his Complaint. (Id. at p. 6.) Plaintiff was
cautioned that his failure to file an appropriate Amended
Complaint “could result in the dismissal of his
cause of action for failure to follow this Court's
Order.” (Id. at p. 7 (emphasis in
original).) This Order was returned as undeliverable on
August 14, 2017, but, after Plaintiff advised the Court of
his change of address, the Clerk of Court re-mailed this
Order to Plaintiff. This Order was not returned as
undeliverable or as otherwise failing to reach Plaintiff.
Plaintiff did not re-submit an Application to Proceed in
Forma Pauperis on this Court's preferred forms, nor
did he file an Amended Complaint.
Court must now determine how to address Plaintiff's
failure to comply with this Court's Order and failure to
prosecute. For the reasons set forth below, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint and
DENY Plaintiff leave to appeal in forma
Dismissal for Failure to Follow this Court's Order and
Failure to Prosecute
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 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 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 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).
did not comply with this Court's Order to file an
appropriate Amended Complaint or to re-submit his Motion to
Proceed in Forma Pauperis on the Court's
preferred forms, despite this Court's directive to do so
and the Court's warnings that the failure to file either
of these forms could result in the dismissal of this action.
Instead, Plaintiff failed to respond to the Court's Order
entirely. Indeed, Plaintiff has not filed any pleadings in
this case since his Notice of Change of Address in August 25,
2017. (Doc. 9.)
the Court should DISMISS without prejudice
Plaintiff's Complaint for Plaintiff's failure to
follow this Court's Order and failure to prosecute.
See Brown, 205 F. App'x at 802 (upholding
dismissal 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).
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff has, of course, not yet
filed a notice of appeal, it would be appropriate to address
these issues in the Court's order of dismissal. Fed. R.
App. P. 24(a)(3) (trial court may certify that appeal is not