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Holmes v. Southern Correctional Medicine

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

May 3, 2018

SCOTT HOLMES, Plaintiff,
v.
SOUTHERN CORRECTIONAL MEDICINE; TATTNALL COUNTY DETENTION CENTER; and K. HUTLEY, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         This 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.[1]

         BACKGROUND

         On 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. 4.)

         DISCUSSION

         The 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 pauperis.

         I. 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);[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 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)).

         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 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).

         Plaintiff 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 this case.

         Thus, 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.

         II. Leave to Appeal in Forma Pauperis

         The 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”).

         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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