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
keep the Court apprised of any change in his address and his
failure to prosecute this action. For the following reasons,
I RECOMMEND that the Court DISMISS
without prejudice Plaintiff's Complaint, (doc.
1), for Plaintiff's failure to prosecute. 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.
January 1, 2018, Plaintiff, proceeding pro se, filed
a Complaint in the Middle District of Georgia contesting the
conditions of his confinement pursuant to 42 U.S.C. §
1983. (Doc. 1.) With his Complaint, Plaintiff filed a Motion
to Proceed in Forma Pauperis, which the Middle
District granted. (Docs. 2, 5.) Plaintiff, however, failed to
complete the in forma pauperis process by not paying
the initial partial filing fee. (Doc. 11.) The Court warned
Plaintiff that failure to comply with his obligation to pay
the initial partial filing fee “may result in the
dismissal of [his] case.” (Id.; see
also Doc. 5.) In response, Plaintiff notified the Court
that he lacked the necessary funds to pay the fee, and, after
reviewing Plaintiff's Complaint, the Middle District
ordered the case transferred to this District because the
events giving rise to Plaintiff's claims occurred here,
in the Southern District of Georgia. (Docs. 12, 13.)
April 24, 2018, Plaintiff's case was transferred to this
District, and the Court mailed Plaintiff a Notice of Transfer
to his address of record. (Docs. 14, 15.) The Notice of
Transfer, however, was returned as undeliverable at
Plaintiff's address with a notation that the mail was
refused and not able to be forwarded. (Docs. 16, 17, 18.) To
date, Plaintiff has not notified the Court of his change of
address or made any effort to inform the Court of his
whereabouts. Further, Plaintiff has still not submitted the
necessary forms required to proceed in forma
pauperis. Indeed, Plaintiff has not taken any action in
this case since he notified the Middle District of his
inability to pay the initial partial fee over two months ago.
Court must now determine how to address Plaintiff's
failure to prosecute this case and to comply with his
obligations to proceed in forma pauperis and to keep
the Court apprised of any change in his address. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS without prejudice
Plaintiff's Complaint and DENY Plaintiff
leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute
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. 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.”). 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).
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 has failed to diligently
prosecute his claims, as he has not taken any action in this
case in over two months. And although Plaintiff did properly
respond to the Middle District's Order regarding his
deficient in forma pauperis filing fee, (docs. 11,
12), he has failed to move forward with the in forma
pauperis process in this Court. Accordingly, in light of
Plaintiff's failure to prosecute his case, the Court
should DISMISS without prejudice
Plaintiff's Complaint. However, because Plaintiff duly
responded to the Middle District's Order regarding his
deficient filing fee, the Court finds that his negligent
failure to update his address and to prosecute is not an
abuse of judicial process; this dismissal shall not
constitute a strike under the PLRA.
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. Fed. R. App. P.
24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis ...