United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Petitioner's failure to
keep the Court apprised of any change in his address. For
reasons set forth below, I RECOMMEND that
the Court DISMISS without prejudice this
action for Petitioner's failure to prosecute and
DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and to
CLOSE this case. I further
RECOMMEND that the Court
DENY Petitioner leave to appeal in forma
November 13, 2017, Petitioner, then a detainee at the
Folkston Processing Center in Folkston, Georgia, filed this
action pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Southern District of Florida. (Doc.
1.) On November 15, 2017, United States Magistrate Judge
Patrick A. White of the Southern District of Florida
recommended that the case be transferred to this Court. (Doc.
3.) That Report and Recommendation was returned as
undeliverable because Petitioner was no longer at that
facility. (Doc. 5.) All subsequent pleadings in this case,
including the Southern District of Florida's Order
adopting the Report and Recommendation and transferring the
case to this Court, have also been returned as undeliverable.
(Docs. 8, 11.) Petitioner has not notified the Court of his
change of address or made any effort to inform the Court of
his whereabouts. Indeed, Petitioner has not taken any action
in this case since the initial filing over eight months ago.
Court must now determine how to address Petitioner's
failure to update his address and his failure to prosecute
this action. For the reasons set forth below, I recommend
that the Court DISMISS the Petition and
DENY Petitioner leave to appeal in forma
Dismissal for Failure to Prosecute.
district court may dismiss a Petitioner'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. 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).
Petitioner having failed to update the Court with his current
address, the Court has no means by which it can communicate
with Petitioner. Thus, the Court is unable to move forward
with this case. Moreover, Petitioner has been given ample
time to notify this Court of his whereabouts, and Petitioner
has not made any effort to do so. Indeed, he has not taken
any action in this case since the original filing.
Accordingly, the Court should DISMISS without
prejudice Petitioner's Section 2241 Petition due
to his failure to prosecute.
Leave to Appeal in Forma Pauperis.
Court should also DENY Petitioner leave to
appeal in forma pauperis. Though Petitioner 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 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 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
“without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
2002); see also Brown v. United States, Nos.
407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9,
on the above analysis of Petitioner's action, there are
no non-frivolous issues to raise on appeal, and an appeal
would not be taken in good faith. Thus, the Court should