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Cadle v. Tatum

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

November 21, 2017

DANIEL CADLE, Plaintiff,
v.
CLAYTON TATUM; JENNIFER CLARK; and ANDREW MCFARLANE, all in their individually and official capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This 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 pauperis.

         BACKGROUND

         Plaintiff, 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.

         DISCUSSION

         The 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 pauperis.

         I. Dismissal for Failure to Follow this Court's Order and Failure to Prosecute

         A 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)).

         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 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).

         Plaintiff 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.)

         Consequently, 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).

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Plaintiff leave to appeal in forma pauperis.[1] 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 ...


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