United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
who is currently incarcerated at Ware State Prison in
Waycross, Georgia, filed a Complaint pursuant to 42 U.S.C.
§ 1983, contesting certain conditions of his
confinement. (Doc. 1.) Plaintiff also filed a Motion for
Leave to Proceed in Forma Pauperis and a Motion for
Emergency Injunction along with his Complaint. (Docs. 2, 3.)
For the reasons set forth below, I RECOMMEND
the Court DISMISS without prejudice
Plaintiff's Complaint for failure to follow this
Court's Order and for failure to prosecute and
DISMISS as moot Plaintiff's Motion for
Emergency Injunction, (doc. 2). Additionally, I
RECOMMEND the Court to
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff
leave to appeal in forma pauperis.
filed his Complaint and Motion for Leave to Proceed in
Forma Pauperis on April 21, 2017. (Docs. 1, 3.)
Additionally, Plaintiff filed a Motion for Emergency
Injunction. (Doc. 2.) On May 11, 2017, the Court deferred
ruling on Plaintiff's in forma pauperis Motion
and directed Plaintiff to file an Amended Complaint using the
proper Section 1983 form by June 1, 2017. (Doc. 4.) Plaintiff
then timely filed his Amended Complaint, (doc. 5), and the
Court granted his Motion to Proceed in Forma
Pauperis, (doc. 6). In that Order, the Court directed
Plaintiff to properly complete and sign the attached Prisoner
Trust Fund Account Statement and Consent to Collection of
Fees from Trust Account forms by September 25, 2017, warning
Plaintiff that the Court would “dismiss [his] case
without prejudice for failure to prosecute and follow this
Court's Orders.” (Id. at pp. 3-4.)
September 29, 2017, Plaintiff filed a Notice of Intent to
Prosecute. (Doc. 7.) In light of Plaintiff's Notice, the
Court declined to dismiss his case at that time pursuant to
the aforementioned warning. The Court allowed Plaintiff over
115 days to continue prosecuting his case by properly
completing and returning the required forms, but Plaintiff
failed to take any action in his case during time. On January
26, 2018, the Court ordered Plaintiff to complete the
required forms by February 26, 2018, and warned Plaintiff
that, should he fail to timely return the forms, “the
Court will presume [he] does not intend to pursue this action
and will dismiss this case without prejudice.” (Doc.
8.) Plaintiff has yet to submit the required forms.
seeks to bring this action in forma pauperis. Under
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of his assets, shows an inability to pay the filing
fee, and also includes a statement of the nature of the
action which shows that he is entitled to redress. Even if
the plaintiff proves indigence, the Court must dismiss the
action if it is frivolous or malicious, or fails to state a
claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to
28 U.S.C. § 1915A, the Court must review a complaint in
which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or
any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a complaint
on an application to proceed in forma pauperis.
See Fed.R.Civ.P. 8 (“A pleading that states a
claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the
pleader is entitled to relief.”); Fed.R.Civ.P. 10
(requiring that claims be set forth in numbered paragraphs,
each limited to a single set of circumstances). Further, a
claim is frivolous under Section 1915(e)(2)(B)(i) “if
it is ‘without arguable merit either in law or
fact.'” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (quoting Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001)).
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys . . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) or 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 plaintiff'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, ...