United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's failure to
comply with the Court's directive of January 19, 2018.
(Doc. 2.) For the following reasons, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, as amended,
(docs. 1, 4), for failure to prosecute and failure to follow
this Court's Order and DIRECT the Clerk
of Court to CLOSE this case and enter the
appropriate judgment of dismissal. I further
RECOMMEND the Court DENY
Plaintiff leave to appeal in forma pauperis.
January 19, 2018, Plaintiff, proceeding pro se,
filed a Complaint contesting certain conditions of his
confinement at Smith State Prison in Glennville, Georgia.
(Doc. 1.) However, Plaintiff did not pay the required filing
fee or move to proceed in forma pauperis when filing
this action. Accordingly, on January 19, 2018, the Clerk of
Court directed Plaintiff to either pay the $400.00 filing fee
or file a motion to proceed in forma pauperis. (Doc.
2.) The Clerk warned Plaintiff that his failure to comply
with that notice may result in dismissal of this action. That
mailing was not returned as undeliverable or as otherwise
failing to reach Plaintiff. Plaintiff has filed pleadings
after that directive. However, Plaintiff still has not paid
the requisite filing fee or moved to proceed in forma
Court must now determine how to address Plaintiff's
failure to pay the filing fee and failure to comply with this
Court's directive. For the reasons set forth below, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint and
DENY Plaintiff leave to appeal in forma
Dismissal for Failure to Prosecute and 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 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 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 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 Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant's current
address for purpose of service); Taylor, 251
Fed.Appx. at 620-21 (upholding dismissal without prejudice
for failure to prosecute, because plaintiffs insisted on
going forward with deficient amended complaint rather than
complying, or seeking an extension of time to comply, with
court's order to file second amended complaint);
Brown, 205 Fed.Appx. at 802-03 (upholding dismissal
without prejudice for failure to prosecute Section 1983
claims, where plaintiff failed to follow court order to file
amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal). With Plaintiff having
neither paid the filing fee nor moved to proceed in forma
pauperis, the Court cannot proceed in this case.
See 28 U.S.C. §§ 1914 & 1915.
Moreover, Plaintiff was given ample notice of the
consequences of his failure to follow the Court's
directive, and Plaintiff has not made any effort to do so or
to otherwise prosecute this case.
the Court should DISMISS without prejudice
Plaintiff's Section 1983 Complaint, as amended, (docs. 1,
4), for failure to prosecute and failure to follow this
Court's Order and DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal.
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff 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 not taken in good faith “before or after the notice
of appeal is filed”).
appeal cannot be taken in forma pauperis if the
trial court certifies, either before or after the notice of
appeal is filed, that the appeal is not taken in good faith.
28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good
faith in this context must be judged by an objective
standard. Busch v. County of Volusia, 189 F.R.D.
687, 691 (M.D. Fla. 1999). A party does not proceed in good
faith when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated
another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is