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Khai v. Gartland

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

April 2, 2018

PUM KHAI, Petitioner,
v.
PATRICK GARTLAND, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         This 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.[1] 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.

         BACKGROUND

         On 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), [2] and he has not made any filing in this case since he originally filed the Petition.

         DISCUSSION

          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.[3] Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[4] 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)).

         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 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.

         While 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).

         Khai 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 case.

         Thus, the Court should DISMISS Khai's Section 2241 Petition, (doc. 1), without prejudice.

         II. Leave to Appeal in Forma Pauperis

         The 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”).

         An 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 ...


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