United States District Court, S.D. Georgia, Waycross Division
DARRELL T. PRICE, Petitioner,
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
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
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.
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
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 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)).
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, 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
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
the Court should DISMISS without prejudice
Petitioner's case for failure to prosecute and failure to
follow this Court's Order.
Leave to Appeal in Forma Pauperis
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”).
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