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Price v. Georgia Department of Corrections

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

April 2, 2018

DARRELL T. PRICE, Petitioner,
v.
GEORGIA DEPARTMENT OF CORRECTIONS; GREG DOZIER; COFFEE CORRECTIONAL FACILITY; WARDEN HILTON HALL; KEITH W. DAY; JUDGE R.J. LANE; SHERIFF WILLIAM PRICE; SHERIFF VICTOR HILL; and CORE CIVIC, Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Petitioner's failure to comply with the Court's Order of February 26, 2018, (doc. 4), and his failure to prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS without prejudice Petitioner's claims for failure to follow the Court's directive and failure to prosecute, DISMISS as moot Petitioner's Motion for Leave to Proceed in Forma Pauperis, (doc. 2), and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case. I also RECOMMEND the Court DENY Petitioner leave to appeal in forma pauperis.

         BACKGROUND

         On January 16, 2018, Petitioner, proceeding pro se, filed a putative 42 U.S.C. § 1983 Complaint, seeking the correction of his sentence computation and immediate release from confinement. (Doc. 1, p. 10.) Petitioner attacked a conviction obtained in the Superior Court of Early County, Georgia, and alleged he was arrested and detained without due process. (Id. at pp.7-8.) That being the case, the Court construed Petitioner's pleading as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §§ 2241 and 2254. (Doc. 4.) The Court directed Petitioner to give notice within fourteen (14) days whether he wanted to voluntarily dismiss or proceed with his case as a habeas action and notified him that his case was due to be transferred to the Middle District of Georgia, where Petitioner was convicted, should he so choose. (Id. at pp. 3-5.) Further, the Court forewarned Petitioner that it would dismiss his case without prejudice if he failed to timely advise of his intention to proceed or not. (Id. at p. 4.) Petitioner, however, has not responded.

         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.[1] Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[2] 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 petitoner'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[, ] . . . [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 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, Petitioner's delay and disregard in this action warrant dismissal of his case without prejudice. See Coleman, 433 Fed.Appx. at 719 (upholding dismissal without prejudice for failure to prosecute Section 1983 complaint where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Taylor, 251 Fed.Appx. at 620-21 (upholding dismissal without prejudice for failure to prosecute, because plaintiffs insisted on going forward with deficient amended complaint rather than complying, or seeking an extension of time to comply, with court's order to file second amended complaint); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         Despite being directed to inform the Court whether he wished to proceed with his case as a habeas action, Petitioner failed to file any responsive pleading. The Court specifically warned Petitioner that his failure to timely advise the Court whether he wished to proceed with his case would result in dismissal without prejudice. Moreover, Petitioner has not taken any action in this case in over two months. Thus, it is clear that Petitioner has ignored his obligations to prosecute this case and to follow this Court's directives.

         Accordingly, the Court should DISMISS without prejudice Petitioner's case for failure to prosecute and failure to follow this Court's Order.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Petitioner leave to appeal in forma pauperis. Though Petitioner 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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