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 Petitioner Rodolfo
Martinez's (“Martinez”) failure to comply
with the Court's Order of January 22, 2018, (doc. 15),
and his failure to prosecute this action. For the following
reasons, I RECOMMEND that the Court
DISMISS without prejudice Martinez's
action for failure to follow the Court's directive and
failure to prosecute and DISMISS as moot all
pending Motions. I further RECOMMEND that
the Court DENY Martinez leave to appeal
in forma pauperis.
September 5, 2017, Martinez 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.) This Court directed Respondent to respond
to Martinez's Petition. (Doc. 5.) Respondent filed a
Response to this Court's Show Cause Order on November 9,
2017. (Doc. 11.) On January 22, 2018, the Court issued an
Order directing Martinez to file any objections to
Respondent's Response, which the Court construed as a
motion to dismiss for failure to exhaust administrative
remedies, within fourteen (14) days of the Court's Order.
(Doc. 15.) The Court specifically advised Martinez that, if
he failed to respond, the Court would presume that he does
not oppose dismissal of this action and would dismiss his
case for failure to prosecute and for failure to follow a
Court Order. (Id. at p. 2.) Despite this warning,
Martinez has entirely failed to respond to this Court's
Order or Respondent's Response. Indeed, Martinez has not
taken any action in this case for nearly two months'
Court must now determine how to address Martinez'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 Martinez's Petition and
DENY him leave to appeal in forma
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
Respondent's Response and this Court's Order and the
consequences for failing to respond, Martinez has not filed
any opposition or otherwise responded to this Court's
Order. Additionally, with Martinez not having taken any
action in this case for nearly two months' time, he has
failed to diligently prosecute his claims.
the Court should DISMISS without prejudice
Martinez's Section 2241 Petition, (doc. 1), for failure
to follow this Court's directives and for failure to
Leave to Appeal in Forma Pauperis
Court should also deny Martinez leave to appeal in forma
pauperis. Though Martinez 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