United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Petitioner's failure to
comply with the Court's Order to keep the Court apprised
of any change in his address. For the following reasons, I
RECOMMEND that the Court DISMISS
without prejudice this action for Petitioner's
failure to prosecute. I further RECOMMEND
that the Court DENY Petitioner leave to
appeal in forma pauperis.
November 2, 2017, Petitioner proceeding pro se,
filed a Petition pursuant to 28 U.S.C. § 2241 in the
Southern District of Florida. (Doc. 1.) On November 22, 2017,
the Southern District of Florida transferred this action to
this Court because Petitioner was incarcerated at Folkston
Processing Center in Folkston, Georgia which is located in
this District. (Doc. 8.) On November 27, 2017, this Court
mailed a Notice of Case Transfer to Petitioner at his last
known place of residence, D. Ray James. (Doc. 10.) However,
the mail was returned undeliverable because Petitioner is no
longer at the Prison. (Doc. 11.) Petitioner has not notified
the Court of his change of address or made any effort to
inform the Court of his whereabouts. Indeed, Petitioner has
not taken any action in this case since November 2, 2017.
Court must now determine how to address Petitioner's
failure to keep the court apprised of any changes in his
address. For the reasons set forth below, I recommend that
the Petitioner be DISMISSED and that
Petitioner be denied leave to appeal in forma
Dismissal for Failure to Prosecute.
district court may dismiss a Petitioner'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 Railroad
Company, 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 petitioner'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. Tallahasse 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 Petitioner 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 Petitioners 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 Petitioner failed to follow court order to
file amended complaint and court had informed Petitioner that
noncompliance could lead to dismissal).
Petitioner having failed to update the Court with his current
address, the Court has no means by which it can communicate
with Petitioner. Thus, the Court is unable to move forward
with this case. Moreover, Petitioner has been given ample
time to notify this Court of his whereabouts, and Petitioner
has not made any effort to do so. Indeed, he has not taken
any action in this case in over two months. Accordingly, the
Court should DISMISS without prejudice
Petitioner's Section 2241 Petition.
Leave to Appeal in Forma Pauperis.
Court should also DENY Petitioner leave to
appeal in forma pauperis. Though Petitioner has, of
course, not yet filed a notice of appeal, it is proper to
address these issues in the Court's order of dismissal.
See Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal of party proceeding in forma pauperis 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 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. Cnty. 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). An in
forma pauperis action is frivolous, and thus not brought
in good faith, if it is ...