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 Karamat
Subhani's (“Subhani”) failure to comply with
the Court's Orders of August 23, 2017, (doc. 3), and
January 22, 2018, (doc. 12), and his failure to prosecute
this action. For the following reasons, I
RECOMMEND the Court DISMISS
Subhani's Petition without prejudice for
failure to follow the Court's directives and failure to
prosecute and DISMISS as moot all other
pending Motions. I further RECOMMEND that
the Court DIRECT the Clerk of Court to enter
the appropriate judgment of dismissal and
CLOSE this case and DENY
Subhani leave to appeal in forma pauperis.
August 16, 2017, Subhani, then housed at the Folkston
Immigration and Customs Enforcement (“ICE”)
Processing Center, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1.) The Court
directed service on August 23, 2017, and ordered Subhani to
“immediately inform this Court in
writing of any change of address. Failure to do so will
result in dismissal of this case, without prejudice.”
(Doc. 3, p. 2 (emphasis in original).) Respondent filed a
Response on September 25, 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 Subhani to file any
objections to Respondent's Response within fourteen (14)
days. (Doc. 12, p. 1.) The Court specifically advised Subhani
that, if he failed to respond, the Court would presume that
he does not oppose dismissal of this action. (Id. at
p. 2.) Despite these warnings, Subhani has entirely failed to
notify the Court of his change of address or file an
appropriate response. Subhani's mail was returned as
undeliverable because he was released, (doc. 13), and he has
not made any filing in this case since September 29, 2017,
Court must now determine how to address Subhani'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 Subhani's claims 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 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. Tallahassee 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, where plaintiff did not respond to court order to
supply defendant's current address for purpose of
service); Brown, 205 Fed.Appx. 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 Subhani
to do so and advising him of the consequences for failing to
respond. In fact, Subhani has failed to diligently prosecute
his claims-he has not taken any action in this case for five
months. Additionally, Subhani 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 Subhani and is
unable to move forward with this case.
the Court should DISMISS Subhani's
Section 2241 Petition, (doc. 1), without
Leave to Appeal in Forma Pauperis
Court should also deny Subhani leave to appeal in forma
pauperis. Though Subhani 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