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Perkins v. United States

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

March 15, 2018

JAMES PERKINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Movant James Perkins' (“Perkins”) failure to comply with the Court's Order of February 8, 2018, (doc. 4), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS without prejudice Perkins' 28 U.S.C. § 2255 Motion for failure to follow the Court's directive and failure to prosecute.[1] I further RECOMMEND that the Court DENY Perkins leave to appeal in forma pauperis and a Certificate of Appealability.

         BACKGROUND

         On June 27, 2016, Perkins filed a Motion to Vacate, Set Aside, or Correct his Sentence, pursuant to 28 U.S.C. § 2255, while housed at the Federal Correctional Institution-Williamsburg in Salters, South Carolina. (Doc. 1.) This Court directed Respondent to respond to Perkins' Motion. (Doc. 2.) Respondent filed a Response to this Court's Show Cause Order on July 7, 2016. (Doc. 3.) On February 8, 2018, the Court issued an Order directing Perkins to file a Reply to Respondent's Response within twenty-one (21) days of the Court's Order. (Doc. 4.) The Court specifically advised Perkins that, if he failed to timely respond or failed to address all of the Government's arguments, the Court would presume that he does not oppose the Government's arguments and would dismiss his case for failure to prosecute and for failure to abide by this Court's Order. (Id. at p. 2.) Despite this warning, Perkins has entirely failed to respond to this Court's Order or the Government's Response. Indeed, Perkins has not taken any action in this case since he filed his Section 2255 Motion on June 27, 2016.

         DISCUSSION

         The Court must now determine how to address Perkins' failure to comply with this Court's Order, his failure to respond to the Government's Response, and his failure to prosecute this action. For the reasons set forth below, I RECOMMEND that the Court DISMISS without prejudice Perkins' Motion and DENY him leave to appeal in forma pauperis and a Certificate of Appealability.

         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 the Government's Response and this Court's Order and the consequences for failing to do so, Perkins has not filed any opposition or otherwise responded to this Court's Order. Additionally, with Perkins not having taken any action in this case since June 27, 2016, he has failed to diligently prosecute his claims.

         Thus, the Court should DISMISS without prejudice Perkins' Section 2255 Motion, (doc. 1), for failure to follow this Court's directives and for failure to prosecute.

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

         The Court should also deny Perkins leave to appeal in forma pauperis and a Certificate of Appealability. Though Perkins has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal. Pursuant to Rule 11 of the Rules Governing Section 2255 Cases, “the district court must issue or deny a certificate of appealability when it issues a final order adverse to the applicant.” (Emphasis supplied); see also Fed. R. App. P. 24(a)(3) (trial court may ...


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