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 December 18, 2017, directive to
pay the required filing fee or to move to proceed in
forma pauperis. (Doc. 2.) For the reasons which follow,
I RECOMMEND that the Court
DISMISS Petitioner's Petition, (doc. 1),
without prejudice for his failure to follow
this Court's directives and failure to prosecute and
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal. I further RECOMMEND
that the Court DENY Petitioner leave to
appeal in forma pauperis.
an inmate at D. Ray James Correctional Institution in
Folkston, Georgia, brought this action pursuant to 28 U.S.C.
§ 2241 on December 18, 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
requisite filing fee or submit a properly completed motion to
proceed in forma pauperis within twenty-one (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 in Folkston, Georgia, and attached to the Notice a form
application to proceed in forma pauperis.
(Id.) The Notice was not returned as undeliverable
or as otherwise failing to reach Petitioner. 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.
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 without prejudice
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
R.R. Co., 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. Tallahassee 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). With Petitioner
failing to provide the Court with a filing fee or moving to
proceed in forma pauperis, the Court has no means to
collect the requisite filing fee 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 directives, and a sanction other than
dismissal would not suffice to remedy his deficiencies.
these reasons, the Court should DISMISS
Petitioner's Section 2241 Petition without
prejudice for failure to prosecute and failure to
follow this Court's directives.
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 would be appropriate to
address these issues in the Court's order of dismissal.
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
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. Cty. 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). Stated
another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is