United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon Movant Jerry Guy's
(“Guy”) failure to comply with the Court's
Orders of September 22, 2016, (doc. 2), and February 8, 2018,
(doc. 4), and his failure to prosecute this action. For the
following reasons, I RECOMMEND that the
Court DISMISS without prejudice Guy's 28
U.S.C. § 2255 Motion for failure to follow the
Court's directives and failure to
prosecute. I further RECOMMEND that
the Court DENY Guy leave to appeal in
forma pauperis and a Certificate of Appealability.
September 19, 2016, Guy 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-Yazoo
City Low in Yazoo City, Mississippi. (Doc. 1.) This Court
directed Respondent to respond to Guy's Motion and
ordered Guy to “immediately inform this Court in
writing of any change of address. Failure to do so will
result in dismissal of this case, without prejudice.”
(Doc. 2, p. 1.) Respondent filed a Response to this
Court's Show Cause Order on October 21, 2016. (Doc. 3.)
On February 8, 2018, the Court issued an Order directing Guy
to file a Reply to Respondent's Response within
twenty-one (21) days of the Court's Order. (Doc. 4.) The
Court specifically advised Guy 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
Order. (Id. at p. 2.) Despite this warning, Guy has
entirely failed to respond to this Court's Order or the
Government's Response. Indeed, Guy has not taken any
action in this case since he filed his Section 2255 Motion on
September 19, 2016.
Court must now determine how to address Guy's failure to
comply with this Court's Orders, 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 Guy'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, Guy has not filed any
opposition or otherwise responded to this Court's Order.
Additionally, with Guy not having taken any action in this
case since September 19, 2016, he has failed to diligently
prosecute his claims. Moreover, Guy has failed to update the
Court with his current address, despite this Court's
instruction to him regarding this obligation. (Doc. 2, p. 1.)
The Court has no means by which it can communicate with Guy
and is unable to move forward with this case.
the Court should DISMISS without prejudice
Guy's Section 2255 Motion, (doc. 1), for failure to
follow this Court's directives and for failure to
Leave to Appeal in Forma Pauperis and Certificate of
Court should also deny Guy leave to appeal in forma
pauperis and a Certificate of Appealability. Though Guy
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