United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
matter comes before the Court upon Movant Aaron
McClendon's (“McClendon”) failure to comply
with the Court's Order of February 8, 2018, (doc. 6), and
his failure to prosecute this action. For the following
reasons, I RECOMMEND that the Court DISMISS without prejudice
McClendon's 28 U.S.C. § 2255 Motion for failure to
follow the Court's directive and failure to
prosecute. I further RECOMMEND that the Court DENY
McClendon leave to appeal in forma pauperis and a
Certificate of Appealability.
November 13, 2017, McClendon 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-Butner Low in Butner, North Carolina. (Doc. 1.)
This Court directed Respondent to respond to McClendon's
Motion. (Doc. 3.) Respondent filed a Response to this
Court's Show Cause Order on December 15, 2017. (Doc. 5.)
On February 8, 2018, the Court issued an Order directing
McClendon to file a Reply to Respondent's Response within
twenty-one (21) days of the Court's Order. (Doc. 6.) The
Court specifically advised McClendon 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, McClendon has entirely failed to
respond to this Court's Order or the Government's
Response. Indeed, McClendon has not taken any action in this
case since he filed his Section 2255 Motion on November 13,
Court must now determine how to address McClendon's
failure to comply with this Court's Order, his failure to
respond to Respondent's Response, and his failure to
prosecute this action. For the reasons set forth below, I
RECOMMEND that the Court DISMISS without prejudice
McClendon's Motion and DENY him leave to appeal in
forma pauperis and a Certificate of Appealability.
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 the
Government's Response and this Court's Order and the
consequences for failing to respond, McClendon has not filed
any opposition or otherwise responded to this Court's
Order. Additionally, with McClendon not having taken any
action in this case since November 13, 2017, he has failed to
diligently prosecute his claims.
the Court should DISMISS without prejudice McClendon's
Section 2255 Motion, (doc. 1), for failure to follow this
Court's directives and for failure to prosecute.
Leave to Appeal in Forma Pauperis and Certificate of
Court should also deny McClendon leave to appeal in forma
pauperis and a Certificate of Appealability. Though
McClendon 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 ...