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 Vilaysak
Suthsaykho's (“Suthsaykho”) failure to comply
with the Court's Orders of October 25, 2017, (doc. 7),
and January 18, 2018, (doc. 12), and his failure to prosecute
this action. For the following reasons, I
RECOMMEND the Court DISMISS
Suthsaykho's Petition without prejudice
for failure to follow the Court's directives and failure
to prosecute and DISMISS as moot all pending
Motions. I further RECOMMEND that
the Court DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal and DENY Suthsaykho
leave to appeal in forma pauperis.
October 11, 2017, Suthsaykho filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 in the Middle
District of Georgia while he was housed at the Immigration
and Customs Enforcement (“ICE”) Processing Center
in Folkston, Georgia. (Doc. 1.) After Suthsaykho's
Petition was transferred on the same date as his filing, this
Court directed service on October 25, 2017, and ordered
Suthsaykho to “immediately inform this Court in writing
of any change of address. Failure to do so will result in
dismissal of this case.” (Doc. 7, p. 2.) Respondent
filed a Motion to Dismiss on December 18, 2017. (Doc. 11.) On
January 18, 2018, the Court issued an Order notifying
Suthsaykho he had fourteen (14) days from the date of the
Court's Order to file any opposition to Respondent's
Motion to Dismiss. (Doc. 12.) The Court specifically advised
Suthsaykho 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.) Despite these
warnings, Suthsaykho has entirely failed to notify the Court
of his change of address or to file an appropriate response
to the Court's January 18, 2018, Order. Suthsaykho's
mail was returned as undeliverable, (doc. 13), and he has not
made any filing in this case since he paid the requisite
filing fee on October 20, 2017.
Court must now determine how to address Suthsaykho'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 Suthsaykho'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 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
Suthsaykho to do so and advising him of the consequences for
failing to respond. In fact, Suthsaykho has failed to
diligently prosecute his claims, as he has not taken any
action in this case for more than four months' time.
Additionally, Suthsaykho has failed to update the Court with
his current address, despite the Court's instruction to
him regarding this obligation. (Doc. 7, p. 2.) The Court has
no means by which it can communicate with Suthsaykho and is
unable to move forward with this case.
the Court should DISMISS without prejudice
Suthsaykho's Section 2241 Petition, (doc. 1).
Leave to Appeal in Forma Pauperis
Court should also deny Suthsaykho leave to appeal in
forma pauperis. Though Suthsaykho 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 ...