United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
matter comes before the Court upon Petitioner Javier
Alonzo's (“Alonzo”) failure to comply with
the Court's Order of December 20, 2017, (doc. 8), and his
failure to prosecute this action. For the following reasons,
I RECOMMEND that the Court DISMISS
without prejudice Alonzo's action for failure to
follow the Court's directive and failure to
prosecute, DISMISS as moot all
pending Motions, and DIRECT the Clerk of
Court to CLOSE this case and to enter the
appropriate judgment of dismissal. I further
RECOMMEND that the Court
DENY Alonzo leave to appeal in forma
September 21, 2017, Alonzo filed a Petition for Writ of
Habeas Corpus, pursuant to 28 U.S.C. § 2241, while
housed at D. Ray James Correctional Facility in Folkston,
Georgia. (Doc. 1.) The Court directed Respondent to respond
to Alonzo's Petition. (Doc. 3.) Respondent filed a Motion
to Dismiss on December 5, 2017. (Doc. 7.) On December 20,
2017, the Court issued an Order directing Alonzo to file any
objections to Respondent's Motion to Dismiss within
fourteen (14) days of the Court's Order. (Doc. 8.) The
Court specifically advised Alonzo that, if he failed to
respond, the Court would presume that he does not oppose
dismissal of this action. (Id.) Despite this
warning, Alonzo has entirely failed to respond to
Respondent's Motion to Dismiss. Indeed, Alonzo has not
taken any action in this case since October 12, 2017, the
date he paid the requisite filing fee.
Court must now determine how to address Alonzo's failure
to comply with this Court's Order, his failure to respond
to Respondent's Motion to Dismiss, and his failure to
prosecute this action. For the reasons set forth below, I
RECOMMEND that the Court DISMISS
without prejudice Alonzo's Petition and
DENY him leave to appeal in forma
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).
having been advised of his obligation to respond to
Respondent's Motion to Dismiss and the consequences for
failing to respond, Alonzo has not filed any opposition to
Respondent's Motion. Additionally, with Alonzo not having
taken any action in this case for nearly five months'
time, he has failed to diligently prosecute his claims.
the Court should DISMISS without prejudice
Alonzo's Section 2241 Petition, (doc. 1), for failure to
follow this Court's directives and for failure to
Leave to Appeal in Forma Pauperis
Court should also deny Alonzo leave to appeal in forma
pauperis. Though Alonzo 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