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Alonzo v. Johns

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

March 9, 2018

JAVIER ROCHA ALONZO, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

         This 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[1], 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 pauperis.

         BACKGROUND

         On 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.

         DISCUSSION

         The 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 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.[2] Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[3] 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).

         Despite 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.

         Thus, 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 prosecute.

         II. Leave to Appeal in Forma Pauperis

         The 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 is ...


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