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 Tcha Yang's
(“Yang”) failure to comply with the Court's
Orders of November 9, 2017, (doc. 3), and March 6, 2018,
(doc. 14), and his failure to prosecute this action. For the
following reasons, I RECOMMEND the Court
DISMISS Yang's Petition without
prejudice for failure to follow the Court's
directives and failure to prosecute and DISMISS as
moot all 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 Yang leave to
appeal in forma pauperis.
November 3, 2017, Yang filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 while he was housed
at the Immigration and Customs Enforcement
(“ICE”) Processing Center in Folkston, Georgia.
(Doc. 1.) The Court directed service of Yang's Petition
on November 9, 2017, and ordered Yang to “immediately
inform this Court in writing of any change of address.
Failure to do so will result in dismissal of this
case.” (Doc. 3, p. 2.) Respondent filed a Motion to
Dismiss on March 5, 2018. (Doc. 13.) On March 6, 2018, the
Court issued an Order notifying Yang he had fourteen (14)
days from the date of the Court's Order to file any
opposition to Respondent's Motion to Dismiss. (Doc. 14.)
The Court specifically advised Yang that, if he failed to
respond, the Court would presume that he does not oppose
dismissal of this action and would dismiss this case.
(Id.) Despite these warnings, Yang has entirely
failed to notify the Court of his change of address or to
file an appropriate response to the Court's March 6,
2018, Order. Yang's mail was returned as undeliverable,
(doc. 15), and he has not made any filing in this case since
January 25, 2018, (doc. 12).
Court must now determine how to address Yang's failure to
comply with this Court's Orders and failure to prosecute
this action. For the reasons set forth below, I
RECOMMEND that the Court DISMISS
without prejudice Yang'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 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[, ] . . . [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, 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 request for
dismissal, despite the Court specifically directing Yang to
do so and advising him of the consequences for failing to
respond. In fact, Yang has failed to diligently prosecute his
claims, as he has not taken any action in this case for more
than two months' time. Additionally, Yang has failed to
update the Court with his current address, despite the
Court's instruction to him regarding this obligation.
(Doc. 3, p. 2.) The Court has no means by which it can
communicate with Yang and is unable to move forward with this
the Court should DISMISS without prejudice
Yang's Section 2241 Petition, (doc. 1).
Leave to Appeal in Forma Pauperis
Court should also deny Yang leave to appeal in forma
pauperis. Though Yang 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