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 Pum Khai's
(“Khai”) failure to comply with the Court's
Orders of January 17, 2018, (doc. 2), and March 13, 2018,
(doc. 8), and his failure to prosecute this action. For the
following reasons, I RECOMMEND the Court
DISMISS Khai's Petition without
prejudice for failure to follow the Court's
directives and failure to prosecute and DISMISS as
moot all other pending Motions. I further
RECOMMEND that the Court
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal and DENY Khai leave to
appeal in forma pauperis.
December 4, 2017, Khai, then housed at the Folkston
Immigration and Customs Enforcement Processing Center, filed
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1.) The Court directed service on January
17, 2018, and ordered Khai to “immediately inform this
Court in writing of any change of address. Failure to do so
will result in dismissal of this case.” (Doc. 2, p. 2.)
Respondent filed a Motion to Dismiss on February 12, 2018.
(Doc. 7.) On March 13, 2018, the Court issued an Order
directing Khai to file any objections to Respondent's
Motion to Dismiss within fourteen (14) days. (Doc. 8.) The
Court specifically advised Khai that, if he failed to
respond, the Court would presume that he does not oppose
dismissal of this action. (Id.) Despite these
warnings, Khai has entirely failed to notify the Court of his
change of address or file an appropriate response. Khai's
mail was returned as undeliverable because he is no longer at
the facility, (doc. 9, p. 1),  and he has not made any filing in
this case since he originally filed the Petition.
I. 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 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 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 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[, ] . . . [for]
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, where plaintiff did not respond to court order to
supply defendant's current address for purpose of
service); Brown, 205 Fed.Appx. 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).
has not filed any opposition to Respondent's Motion to
Dismiss, despite the Court specifically directing Khai to do
so and advising him of the consequences for failing to
respond. In fact, Khai has failed to diligently prosecute his
claims-he has not taken any action in this case since he
filed his Petition five months ago. Additionally, Khai has
failed to update the Court with his current address, despite
the Court's instruction to him regarding this obligation.
(Doc. 2, p. 2.) The Court has no means by which it can
communicate with Khai and is unable to move forward with this
the Court should DISMISS Khai's Section
2241 Petition, (doc. 1), without prejudice.
Leave to Appeal in Forma Pauperis
Court should also deny Khai leave to appeal in forma
pauperis. Though Khai 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