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Yang v. Gartland

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

April 3, 2018

TCHA YANG, 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 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.[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 Yang leave to appeal in forma pauperis.

         BACKGROUND

         On 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).

         DISCUSSION

         The 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 pauperis.

         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. 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 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)).

         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).

         Yang 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 case.

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

         II. Leave to Appeal in Forma Pauperis

         The 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 is ...


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