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 upon Petitioner Jesus
Montano's (“Montano”) failure to comply with
the Court's Orders of September 15, 2017, (doc. 3), and
January 22, 2018, (doc. 11), and his failure to prosecute
this action. For the following reasons, I
RECOMMEND the Court DISMISS
Montano's Petition without prejudice for
failure to follow the Court's directives and failure to
prosecute. I further RECOMMEND that
the Court DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal and DENY Montano leave
to appeal in forma pauperis.
August 18, 2017, Montano filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 while he was housed
at the D. Ray James Correctional Institution in Folkston,
Georgia. (Doc. 1.) The Court directed service on September
15, 2017, and ordered Montano to “immediately inform
this Court in writing of any change of address. Failure to do
so will result in dismissal of this case.” (Doc. 3, p.
2.) Respondent filed a Response on October 10, 2017. (Doc.
8.) On January 22, 2018, the Court issued an Order stating
that “Respondent's arguments amount to a motion to
dismiss the Petition” and directed Montano to file any
objections to Respondent's Response within fourteen (14)
days of the Court's Order. (Doc. 11, p. 1.) The Court
specifically advised Montano that, if he failed to respond,
the Court would presume that he does not oppose dismissal of
this action and would dismiss this case. (Id. at p.
2.) Despite these warnings, Montano has entirely failed to
notify the Court of his change of address or to file an
appropriate response to the Court's January 22, 2018,
Order. Montano's mail was returned as undeliverable,
(doc. 12), and he has not made any filing in this case since
he paid the requisite filing fee on September 5, 2017.
Court must now determine how to address Montano's failure
to comply with this Court's Orders and failure to
prosecute this action. For the reasons set forth below, I
RECOMMEND that the Court
DISMISS Montano's Petition
without prejudice and DENY
him leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Follow this
district court may dismiss a petitioner's claims for
failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) and 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, where plaintiff did not respond to court order to
supply defendant's current address for purpose of
service); Brown, 205 F. App'x at 802-03
(upholding dismissal without prejudice for failure to
prosecute, where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal).
has not filed any opposition to Respondent's request for
dismissal, despite the Court specifically directing Montano
to do so and advising him of the consequences for failing to
respond. In fact, Montano has failed to diligently prosecute
his claims, as he has not taken any action in this case for
five months' time. Additionally, Montano has failed to
update the Court with his current address, despite the
Court's instruction to him regarding this obligation.
(Doc. 3, p. 2.) The Court has no means by which it can
communicate with Montano and is unable to move forward with
the Court should DISMISS without prejudice
Montano's Section 2241 Petition, (doc. 1).
Leave to Appeal in Forma Pauperis
Court should also deny Montano leave to appeal in forma
pauperis. Though Montano has, of course, not yet filed a
notice of appeal, it would be appropriate to address that
issue in the Court's order of dismissal. See
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal