United States District Court, S.D. Georgia, Statesboro 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 November 28, 2017, directive to
pay the required filing fee or to move to proceed in
forma pauperis. (Doc. 2.) For the below reasons, I
RECOMMEND that the Court DISMISS
without prejudice Petitioner's Petition, (doc.
1), for his failure to follow this Court's Order and for
failure to prosecute. I further recommend that the Court
DENY Petitioner a certificate of
appealability and DENY leave to appeal
in forma pauperis.
an inmate at Jenkins Correctional Facility in Millen,
Georgia, brought this action on November 21, 2017. (Doc. 1.)
However, Petitioner did not pay the $5.00 filing fee
associated with habeas corpus actions or move to proceed
in forma pauperis. Thus, the Court issued a
Deficiency Notice advising Petitioner that he must pay the
filing fee or submit a properly completed motion to proceed
in forma pauperis within 21 days from the date of
the Notice. (Doc. 2.) The Court mailed the Notice to
Petitioner's last known address at Jenkins Correctional
Facility and attached to the Notice a form application to
proceed in forma pauperis. (Id.) The Notice
was not returned as undeliverable. However, Petitioner has
not provided the required filing fee or moved to proceed
in forma pauperis. The only action he has taken
since filing his initial Petition is to file an Amended
Court must now determine how to address Petitioner's
failure to comply with this Court's directive. For the
reasons set forth below, I recommend that the Court
DISMISS Petitioner's Habeas Corpus
Petition without prejudice and deny him leave to appeal
in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a petitioner 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 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).
Petitioner having failed to provide the Court with a filing
fee or moved to proceed in forma pauperis, the Court
has no means to collect the filing fees in this case or to
assess Petitioner's eligibility for in forma
pauperis status. Furthermore, he has failed to
diligently prosecute his claims. Thus, Petitioner has
demonstrated a clear record of delay and disregard for this
Court's Order, and a sanction other than dismissal would
not suffice to remedy his deficiencies.
these reasons, the Court should DISMISS without
prejudice Petitioner's Petition for failure to
prosecute and failure to follow this Court's Order, and
this case should be CLOSED.
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 ...