United States District Court, M.D. Georgia, Macon Division
JASON M. TATUM, Plaintiff,
SUPERIOR COURT, Defendant.
T. TREADWELL UNITED STATES DISTRICT COURT
States Magistrate Judge Charles H. Weigle recommends that
Plaintiff Jason M. Tatum's complaint be dismissed
pursuant to Fed.R.Civ.P. 41(b) for failure to comply with the
Court's order. Doc. 14 at 2-3. Tatum has objected to the
recommendation and has also moved for an extension of time to
file a recast complaint and for counsel to be appointed. Doc.
15. Pursuant to 28 U.S.C. § 636(b)(1), the Court has
performed a de novo review of the portions of the
recommendation to which Tatum objects and, for the reasons
stated herein, ADOPTS that recommendation.
Additionally, Tatum's motion for extension of time to
file a recast complaint is DENIED, and his
motions to proceed in forma pauperis (Doc. 6) and to
appoint counsel (Doc. 16) are DENIED as
moved for leave to proceed IFP on May 17, 2017. Doc. 6.
Accordingly, the Magistrate Judge attempted to screen
Tatum's complaint pursuant to 28 U.S.C. § 1915(a) to
ensure he stated a claim for relief. See Doc. 7.
However, from Tatum's complaint, the Magistrate Judge
could not determine if Tatum wished to pursue a civil rights
claim under 28 U.S.C. § 1983 or if he intended to file a
petition for writ of habeas corpus under 28 U.S.C. §
2241. Id. at 1-2. Accordingly, the Magistrate Judge
ordered Tatum to file a recast complaint or a habeas corpus
petition and to fill out the applicable forms, which the
Magistrate Judge instructed the Clerk to send to Tatum.
Id. Tatum was then granted two extensions of time to
recast his complaint. Docs. 8; 10. On January 2, 2018, Tatum
was ordered to show cause why his complaint should not be
dismissed for failure to comply with the Court's order.
Doc. 12. In response, rather than file a recast compliant or
a habeas petition, Tatum again moved for an extension of
time, stating he could not comply with the order due to the
“disability, hardship and nuisance of
incarceration.” Doc. 13 at 2. The Magistrate Judge
denied that motion and now recommends that Tatum's
complaint be dismissed for failure to comply with the
Court's orders. Doc. 14 at 2.
objection, Tatum again argues that he cannot comply with the
Court's orders because he is incarcerated and,
specifically, because he does not have access to
“stationary provisions.” Doc. 18 at 1. The Court
notes this has not prevented Tatum from filing three motions
for extension of time. Docs. 8; 10; 13. Moreover, Tatum
states that he is “now ready to file recast
complaint” but, instead of filing his recast complaint,
requests an additional six months to do so. Doc. 15 at 3.
This motion for extension of time is DENIED.
The Court has reviewed both the recommendation and
Tatum's objection, and the Court adopts the findings,
conclusions, and recommendations of the Magistrate Judge.
the recommendation (Doc. 14) is ADOPTED and
made the order of this court, and Tatum's complaint is
DISMISSED without prejudice for failure to
comply with the court's order. Fed.R.Civ.P. 41(b);
Brown v. Tallahassee Police Dep't, 205
F. App'x 802, 802 (11th Cir. 2006) (“The court may
dismiss an action sua sponte under Rule
41(b) for failure to prosecute or failure to obey a court
order.”) (citing Fed.R.Civ.P. 41(b) and Lopez v.
Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th
Cir. 1978)). Tatum's motion for extension of time, stated
in his objection, is DENIED, and, moreover,
his motions to proceed IFP (Doc. 6) and for appointment of
counsel (Doc. 16) are DENIED as
 From the record, the Court cannot
determine if the applicable statute of limitations has run or
is about to run on Tatum's claims. “[W]here a
dismissal without prejudice has the effect of precluding the
plaintiff from re-filing his claim due to the running of the
statute of limitations, it is tantamount to a dismissal with
prejudice.” Stephenson v. Doe, 554 F.
App'x 835, 837 (11th Cir. 2014) (citing Justice v.
United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993)).
But even if dismissal here were effectively with prejudice,
that would be appropriate because, as established herein,
there is a “a clear record of delay or willful
misconduct” and “lesser sanctions are inadequate
to correct such conduct.” Stephenson, 554 F.
App'x at 837 (citations omitted); see also Hickman v.
Hickman, 563 F. App'x 742 (11th Cir. 2014)
(upholding sua sponte dismissal with prejudice for failure to
respond to the district court's order); Eades v. Ala.
Dep't of Human Res., 298 F. App'x 862 (11th Cir.
 Notwithstanding dismissal of
Tatum's complaint, his motion for appointment of counsel
is due to be denied because he has not established that the
issues in this case are factually nor legally complex.
See Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.
1985) (“Appointment of ...