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 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
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
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
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 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 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).
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.
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.
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 ...