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Rosario v. Johns

United States District Court, S.D. Georgia, Waycross Division

January 12, 2018

ANEUDY RODRIGUEZ ROSARIO, Petitioner,
v.
WARDEN TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Petitioner's failure to comply with the Court's November 27, 2017, directive to pay the required filing fee or to move to proceed in forma pauperis. (Doc. 2.) For the reasons set forth below, 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 leave to appeal in forma pauperis.

         BACKGROUND

         Petitioner, an inmate at D. Ray James Correctional Institute in Folkston, Georgia, brought this action pursuant to 28 U.S.C. § 2241 on November 27, 2017. (Doc. 1.) However, Petitioner did not pay the $5.00 filing fee 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 D. Ray James Correctional Facility in Folkston, Georgia 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. Indeed, he has not taken any action in this case since filing his Petition.

         DISCUSSION

         The 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 Section 2241 Petition and deny him leave to appeal in forma pauperis.

         I. Dismissal for Failure to Prosecute and Failure to Follow this Court's Order.

         A 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.[1]Link v. Wabash Railroad Company, 370 U.S. 626 (1962);[2] 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)).

         It is 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.

         While 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 plaintiff 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 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 Fed.Appx. 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 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, with Petitioner not having taken any action in this case since the filing of his Petition, 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.

         For these reasons, the Court should DISMISS without prejudice Petitioner's Section 2241 Petition for failure to prosecute and failure to follow this Court's Order, and this case should be CLOSED.

         II. Leave to Appeal in Forma Pauperis.

         The 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 ...


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