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Wittrien v. Nurse Practitioner FNU Jodi

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

November 22, 2017

LUIS ANTHONY WITTRIEN, Plaintiff,
v.
NURSE PRACTITIONER FNU JODI, et al., in their individual 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 September 25, 2017. (Doc. 6.) For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, as amended, (docs. 1, 4), 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

         On February 1, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain conditions of his confinement at the Coffee County Jail in Douglas, Georgia. (Doc. 1.) However, the Court deferred ruling on Plaintiff's Motion for Leave to Proceed in Forma Pauperis and conducting the requisite frivolity review of Plaintiff's Complaint because Plaintiff failed to set forth grounds for relief in his original Complaint. (Doc. 3, p. 4.) The Court directed Plaintiff to amend his Complaint and provided specific instructions as to how to amend his Complaint. (Id.) Plaintiff then filed an Amended Complaint in response to this Court's Order. (Doc. 4.)

         On September 25, 2017, the Court granted Plaintiff's Motion for Leave to Proceed in Forma Pauperis. (Doc. 6.) In this Order, the Court advised Plaintiff that he “must return both” the Prisoner Trust Account Statement and the Consent to Collection of Fees From Trust Account forms to the Clerk of Court within thirty (30) days. (Id. at p. 3.) The Court warned Plaintiff that his failure to respond to the Court's Order within thirty (30) days, or by October 25, 2017, would result in the dismissal of his case without prejudice for failure to prosecute and follow this Court's Order. (Id. at p. 4.) That mailing was not returned as undeliverable or as otherwise failing to reach Plaintiff. Plaintiff has not taken any action in response to this Order. Indeed, Plaintiff has not made any filings in this case since March 24, 2017.

         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 Prosecute and Follow this Court's Order

         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);[1] 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). With Plaintiff having failed to provide the Court with the requisite forms for a prisoner-plaintiff proceeding in forma pauperis, the Court cannot proceed in this case. See 28 U.S.C. §§ 1914 & 1915. Moreover, Plaintiff was given ample notice of the consequences for his failure to follow the Court's Order, and Plaintiff has not made any effort to do so or to otherwise prosecute this case.

         Thus, the Court should DISMISS Plaintiff's Section 1983 Complaint, as amended, (docs. 1, 4), without prejudice for failure to prosecute and failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Plaintiff leave to appeal in forma pauperis.[2] Though Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal ...


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