Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tobon v. Johns

United States District Court, S.D. Georgia, Waycross Division

March 6, 2018

JUAN GUILLERMO TOBON, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Petitioner Juan Tobon's (“Tobon”) failure to comply with the Court's Orders of September 29, 2017, (doc. 10), and January 22, 2018, (doc. 16), and his failure to prosecute this action. For the following reasons, I RECOMMEND the Court DISMISS Tobon's Petition without prejudice for failure to follow the Court's directives and failure to prosecute and DISMISS as moot all pending Motions.[1] I further RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Tobon leave to appeal in forma pauperis.

         BACKGROUND

         On August 2, 2017, Tobon filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the Middle District of Alabama, while he was housed at the D. Ray James Correctional Institution in Folkston, Georgia. (Doc. 2.) After Tobon's Petition was transferred on September 1, 2017, this Court directed service on September 29, 2017, and ordered Tobon to “immediately inform this Court in writing of any change of address. Failure to do so will result in dismissal of this case.” (Doc. 10, p. 2.) Respondent filed a Response on October 19, 2017. (Doc. 15.) On January 22, 2018, the Court issued an Order stating that “Respondent's arguments amount to a motion to dismiss the Petition” and directed Tobon to file any objections to Respondent's Response within fourteen (14) days of the Court's Order. (Doc. 16, p. 1.) The Court specifically advised Tobon 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, Tobon 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. Tobon's mail was returned as undeliverable, (doc. 17), and he has not made any filing in this case since he paid the requisite filing fee on September 28, 2017.

         DISCUSSION

         The Court must now determine how to address Tobon'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 Tobon's Petition without prejudice and DENY him leave to appeal in forma pauperis.

         I. Dismissal for Failure to Prosecute and Follow this Court's Orders

         A 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);[2] 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)).

         It is 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.

         While 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).

         Tobon has not filed any opposition to Respondent's request for dismissal, despite the Court specifically directing Tobon to do so and advising him of the consequences for failing to respond. In fact, Tobon has failed to diligently prosecute his claims, as he has not taken any action in this case for five months' time. Additionally, Tobon has failed to update the Court with his current address, despite the Court's instruction to him regarding this obligation. (Doc. 10, p. 2.) The Court has no means by which it can communicate with Tobon and is unable to move forward with this case.

         Thus, the Court should DISMISS without prejudice Tobon's Section 2241 Petition, (doc. 2).

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Tobon leave to appeal in forma pauperis. Though Tobon 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 is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.