United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
currently incarcerated at Smith State Prison in Glennville,
Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983,
contesting certain conditions of his confinement. (Doc. 1.)
For the reasons set forth below, the Court
DENIES Plaintiff's Motion for Leave to
Proceed in Forma Pauperis. (Doc. 3.) In addition, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint for failure to
follow this Court's Order, DIRECT the
Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal, and
DENY Plaintiff leave to appeal in forma
filed his Complaint on September 15, 2017, and a Motion for
Leave to Proceed in Forma Pauperis shortly
thereafter. (Docs. 1, 3.) On October 16, 2017, the Court
deferred ruling on Plaintiff's in forma pauperis
Motion and directed Plaintiff to file an Amended Complaint
and to re-file his Motion for Leave to Proceed in Forma
Pauperis using the correct form. (Doc. 4.) The Court
warned Plaintiff that a failure to properly amend or file an
appropriate in forma pauperis Motion would result in
dismissal. (Id.) Despite these warnings, Plaintiff
failed to file any amendment to his Complaint or submit an
appropriate application for leave to proceed in forma
seeks to bring this action in forma pauperis. Under
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of his assets, shows an inability to pay the filing
fee, and also includes a statement of the nature of the
action which shows that he is entitled to redress. Even if
the plaintiff proves indigence, the Court must dismiss the
action if it is frivolous or malicious, or fails to state a
claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to
28 U.S.C. § 1915A, the Court must review a complaint in
which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or
any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a Complaint
on an application to proceed in forma pauperis.
See Fed. R. Civ. P. 8 (“A pleading that states
a claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the
pleader is entitled to relief.”); Fed.R.Civ.P. 10
(requiring that claims be set forth in numbered paragraphs,
each limited to a single set of circumstances). Further, a
claim is frivolous under Section 1915(e)(2)(B)(i) “if
it is ‘without arguable merit either in law or
fact.'” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (quoting Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001)).
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys. . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal for Failure to Follow this Court's
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, 630-31 (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 comply with the Federal Rules of Civil
Procedure, a court order, or local rules. Fed.R.Civ.P. 41(b);
see 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 . . .
with or without prejudice [for] 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 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 follow
court orders is a “sanction . . . applicable only in
extreme circumstances” and requires that a court
“(1) [make] a clear record of willful conduct and (2) a
finding that lesser sanctions are inadequate.”
Baltimore v. Jim Burke Motors, Auto., 300
F. App'x 703, 707 (11th Cir. 2008) (per curiam) (citing
Betty K Agencies, Ltd., 432 F.3d at 1339, and
quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th
Cir. 1985)). see also McIntosh v. Gauthier, 182 F.
App'x 884, 886-87 (11th Cir. 2006) (same) (citing
McKelvey v. AT&T Techs., Inc., 789 F.2d 1518,
1520 (11th Cir. 2008)). By contrast, dismissal
without prejudice for failure to follow a court
order is not an adjudication on the merits, and, therefore,
courts are afforded greater discretion in dismissing claims
in this manner. See Taylor v. Spaziano, 251 F.
App'x 616, 619 (11th Cir. 2007); see also
Fed.R.Civ.P. 41(b) (providing that an involuntary dismissal
for failure to comply with a court order is an adjudication
on the merits, unless the district court “states
otherwise”); Brown, 205 F. App'x at 802
(noting that dismissal without prejudice under Rule 41(b) is
generally not an abuse of discretion).
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action without prejudice is
warranted. See 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), see also Taylor, 251 F. App'x at
620-21 (upholding dismissal without prejudice for failure to
follow a court order and for failure to prosecute, where
plaintiffs failed to follow the court's specific
instructions on how to amend their deficient complaint,
instead submitting an amended complaint that contained the
same deficiencies as the original); cf. Moon v.
Newsome, 863 F.2d 835, 837-39 (11th Cir. 1989)
(upholding dismissal with ...