United States District Court, S.D. Georgia, Waycross Division
STEPHEN W. CARD, et al., Plaintiffs,
OFFICER JOHN DOE, et al., Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's and the five
other putative plaintiffs'failure to comply with the
Court's directive of October 17, 2017. (Doc. 9.) For the
following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint, (doc. 1), for failure to prosecute and failure to
follow this Court's Order, DISMISS as
moot all pending Motions, and
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal. I further RECOMMEND
the Court DENY Plaintiff leave to appeal
in forma pauperis.
August 14, 2017, Plaintiff, proceeding pro se, filed
a Complaint in the Middle District of Georgia contesting
certain conditions of his confinement. (Doc. 1.) The Middle
District of Georgia directed Plaintiff to either pay the
requisite filing fee or move to proceed in forma
pauperis. The Middle District of Georgia then
transferred this case to this District on October 17, 2017.
(Docs. 6, 7.) However, Plaintiff still had not paid the
required filing fee or moved to proceed in forma
pauperis when this cause of action was transferred to
this Court. Accordingly, on October 10, 2017, the Clerk of
Court directed Plaintiff and the other five named plaintiffs
to either pay the $400.00 filing fee or file a motion to
proceed in forma pauperis. (Doc. 9.) The Clerk
warned Plaintiff that his failure to comply with that notice
may result in dismissal of this action. That mailing was not
returned as undeliverable or as otherwise failing to reach
Plaintiff. Plaintiff has not taken any action in response to
that directive. Indeed, Plaintiff has not made any filings in
this case since his initial Complaint. However, another
putative plaintiff, Arthur Fedd, filed an Amended Complaint,
a Motion for Injunctive Relief, and a Motion for Appointment
of Counsel. (Docs. 10, 12, 13.)
Court must now determine how to address Plaintiff's
failure to pay the filing fee and failure to comply with this
Court's directive. 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 Prosecute and 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 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). With Plaintiff having
neither paid the filing fee nor moved to proceed 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 of his failure to follow the Court's
directive, and Plaintiff has not made any effort to do so or
to otherwise prosecute this case.
the Court should DISMISS Plaintiff's
Section 1983 Complaint, (doc. 1), 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.
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 that
issue in the Court's order of dismissal. See
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal
is not taken in good faith “before or after the notice
of appeal is filed”).
appeal cannot be taken in forma pauperis if the
trial court certifies, either before or after the notice of
appeal is filed, that the appeal is not taken in good faith.
28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good
faith in this context must be judged by an objective
standard. Busch v. Cty. of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith
when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated
another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is