United States District Court, S.D. Georgia, Waycross Division
ANTHONY H. ROTH, Plaintiff,
JUDY PHILLIPS, Magistrate Judge, Coffee County; and BUSTOS, Sheriff's Deputy, Coffee County Sheriff's Department, Defendants.
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 Order to keep the Court apprised
of any change in his address. For the following reasons, I
RECOMMEND that the Court
DISMISS Plaintiff's Complaint, (doc. 1),
without prejudice for failure to prosecute
and failure to follow this Court's Order. I further
RECOMMEND that the Court
DENY Plaintiff leave to appeal in forma
pauperis and DIRECT the Clerk of Court
to enter the appropriate judgment of dismissal and to
CLOSE this case.
filed a Complaint claiming wrongful arrest and false
imprisonment. (Doc. 1.) With his Complaint, Plaintiff filed a
Motion to Proceed in Forma Pauperis. (Doc. 2.) The
Court granted that Motion on January 22, 2018, and ordered
Plaintiff to immediately inform this Court in writing of any
change in his address. (Doc. 3, p. 3.) The Court emphasized
that, should Plaintiff fail to comply with this directive,
the Court would dismiss his case. (Id.)
10, 2018, the Court issued an Order directing monthly
payments be made from Plaintiff's prison trust account.
(Doc. 8.) The Clerk mailed this Order to Plaintiff at his
last known place of residence. The mail was returned as
undeliverable. (Doc. 9.) Plaintiff has not notified the Court
of his change of address or made any effort to inform the
Court of his whereabouts. Indeed, Plaintiff has not taken any
action in this case for over three months.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directive. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS Plaintiff's Complaint
and DENY Plaintiff leave to appeal in
Dismissal for Failure to Prosecute and Failure to Follow this
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) (per curiam) (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) (per curiam) (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) (per curiam) (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) (per curiam) (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). With Plaintiff having
failed to update the Court with his current address, the
Court has no means by which it can communicate with
Plaintiff. Thus, the Court is unable to move forward with
this case. Moreover, Plaintiff was given ample time to follow
the Court's directive, and Plaintiff has not made any
effort to do so. Additionally, Plaintiff has failed to
diligently prosecute his claims, as he has not taken any
action in this case in over three months.
the Court should DISMISS without prejudice
Plaintiff's Complaint, (doc. 1), and
CLOSE this case for failure to prosecute and
failure to follow this Court's Order.
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 is proper to address these issues in
the Court's order of dismissal. See Fed. R. App.
P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis ...