United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
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 as well as his failure to comply
with the Court's Order that he reply to Respondent's
Response. For the following reasons, I
RECOMMEND that Petitioner's Petition,
(doc. 1), be DISMISSED without prejudice for
Petitioner's failure to prosecute and failure to follow
the Court's Order. I further RECOMMEND
that Petitioner be denied leave to appeal in forma
17, 2017, Petitioner proceeding pro se, filed a
Petition pursuant to 28 U.S.C. § 2241 in the Southern
District of Florida. (Doc. 1.) On August 8, 2017, the
Southern District of Florida transferred this action to this
Court because Petitioner was incarcerated at D. Ray James
Correctional Facility in Folkston, Georgia which is located
in this District. (Doc. 4.) After the Court ordered noted his
failure to pay the $5.00 filing fee, Petitioner filed a
Motion to Proceed in Forma Pauperis, (doc. 9.),
which this Court granted, (doc. 12).
Order, the Court instructed Petitioner to immediately advise
the Court in writing of any change in Petitioner's
address. (Id. at p. 2.) The Order explained to
Petitioner that his failure to notify the Court of any change
in his address may result in dismissal of his case.
(Id.) On October 27, 2017, this Court ordered
Petitioner to file a Reply to the Respondent's Response
to this Court's show cause order. (Doc. 16.) The Clerk of
Court mailed that Order to Petitioner at his last known place
of residence, D. Ray James. However, the mail was returned
undeliverable because Petitioner is no longer at the Prison.
(Doc. 17.) 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 August 25, 2017.
Court must now determine how to address Petitioner's
failure to comply with this Court's directive to keep the
court apprised of any changes in his address and his failure
to file a Reply. For the reasons set forth below, I recommend
that the Petitioner be dismissed and that Petitioner be
denied leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow a
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 Fed.Appx. 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 Fed.Appx.
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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. 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 Fed.Appx. at 619; see also
Coleman, 433 Fed.Appx. at 719; Brown, 205
Fed.Appx. at 802-03.
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action without prejudice is
warranted. See Coleman, 433 Fed.Appx. 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
Fed.Appx. 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 Fed.Appx. 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). With 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 was given ample time to
update his address and to file a Reply to Respondent's
Response, and Petitioner has not made any effort to do so.
Indeed, he has not taken any action in this case in over four
months. Thus, 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 ...