United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's failure to
comply with the Court's directive of March 9, 2018. (Doc.
3.) For the following reasons, I RECOMMEND
the Court DISMISS without prejudice
Plaintiff's Complaint, (doc. 1), for failure to prosecute
and failure to follow this Court's Order and
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal. I further RECOMMEND
the Court DENY Plaintiff leave to appeal
in forma pauperis.
September 13, 2017, Plaintiff, proceeding pro se,
filed a Complaint contesting certain conditions of his
confinement at Tattnall County Jail in Reidsville, Georgia.
(Doc. 1.) The Court granted Plaintiff's Motion for Leave
to Proceed in Forma Pauperis on March 9, 2018. (Doc.
3.) In that Order, the Court advised Plaintiff that he
“shall immediately inform the
Court in writing of any change in address. Failure to do so
will result in dismissal of this case, without
prejudice.” (Id. at p. 3 (emphases in
original).) In addition, the Court informed Plaintiff that
his failure to respond to the Court's Order by April 9,
2018, would result in the dismissal of this cause of action
for failure to prosecute and failure to follow a Court Order.
(Id. at p. 4.) This Order was returned to the Court
with the notation “Inmate no longer here”. (Doc.
Court must now determine how to address Plaintiff's
failure to pay the filing fee and failure to comply with this
Court's directive. For the reasons set forth below, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint and
DENY Plaintiff leave to appeal in forma
Dismissal for Failure to Prosecute and to Follow this
Court's Order A district court may dismiss a
plaintiff's claims sua sponte pursuant to either
Federal Rule of Civil Procedure 41(b) (“Rule
41(b)”) or 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 plaintiff'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 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).
has not responded to this Court's Order, despite the
Court specifically directing Plaintiff to do so and advising
him of the consequences for failing to respond. In fact,
Plaintiff has failed to diligently prosecute his claims, as
he has not taken any action in this case since he filed his
Complaint on September 13, 2017. Additionally, Plaintiff has
failed to update the Court with his current address, despite
the Court's instruction to him regarding this obligation.
(Doc. 3, p. 3.) The Court has no means by which it can
communicate with Plaintiff and is unable to move forward with
the Court should DISMISS without prejudice
Plaintiff's Section 1983 Complaint, (doc. 1), for failure
to prosecute and failure to follow this Court's Order and
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal.
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff 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