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 April 6, 2018. (Doc.
3.) For the following reasons, I RECOMMEND
the Court DISMISS without prejudice
Plaintiff's Complaint, (doc. 1), for 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
April 6, 2018, Plaintiff, proceeding pro se and
attempting to litigate with a fellow prisoner, filed a
Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.)
However, Plaintiff did not pay the required filing fee or
move to proceed in forma pauperis when filing this
action. Accordingly, on April 6, 2018, the Clerk of Court
directed Plaintiff to either pay the $400.00 filing fee or
file a motion to proceed in forma pauperis. (Doc.
3.) The Clerk warned Plaintiff that his failure to comply
with that notice may result in dismissal of this action. That
mailing was not returned as undeliverable or as otherwise
failing to reach Plaintiff. In response, Plaintiff filed an
“Affidavit” in which he “challenges”
the requisite filing fee. (Doc. 4, p. 3.) Plaintiff has not
paid the requisite filing fee or moved to proceed in
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
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;
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
neither paid the filing fee nor moved to proceed in forma
pauperis, the Court cannot move forward with this case.
See 28 U.S.C. §§ 1914 & 1915.
Moreover, Plaintiff was given notice of the consequences of
his failure to follow the Court's directive, and
Plaintiff has not made any effort to comply.
the Court should DISMISS without prejudice
Plaintiff's Section 1983 Complaint, (doc. 1), for 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). An in
forma pauperis action is frivolous, and thus, not
brought in good faith, if it is ...