United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's failure to
comply with Court Orders. First, Plaintiff failed to comply
with this Court's October 2, 2018 Order to pay the entire
filing fee or file a motion to proceed in forma
pauperis. Doc. 3. Second, Plaintiff failed to comply
with this Court's October 9, 2018 Order to sign and
re-submit his Amended Complaint within 14 days. Doc. 5. For
the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint, doc. 1, for Plaintiff's failure to follow this
Court's Orders and failure to prosecute 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.
who is housed at Georgia State Prison in Reidsville, Georgia,
brought this 42 U.S.C. § 1983 action on October 1, 2018.
Doc. 1. On October 2, 2018, this Court directed Plaintiff to
re-submit a signed copy of his Compliant and to pay the
entire filing fee or file a motion to proceed in forma
pauperis. Docs. 2, 3. On October 4, 2018, Plaintiff
filed an unsigned, Amended Complaint, which added a new
Defendant but did nothing to address either of the two
initial filing errors the Court ordered Plaintiff to correct.
Doc. 4. On October 9, 2018, the Court again ordered Plaintiff
submit a signed copy of his Amended Complaint. Doc. 5.
Order, the Court cautioned Plaintiff that, should he fail to
comply with this Court's directive in a timely manner,
his Complaint could be dismissed, without prejudice.
Id. The Court mailed each Order to Plaintiff at the
most recent address it has for him, and none of the three
Orders were returned to the Court as undeliverable or as
otherwise failing to reach Plaintiff. The Court has not
received any pleading from Plaintiff since issuing the
October 9, 2018 Order. Indeed, Plaintiff has not taken any
action in this case since filing his Amended Complaint on
October 4, 2018.
Court must now determine how to address Plaintiff's
failure to comply with this Court's directives. For the
reasons set forth below, I RECOMMEND the
Court DISMISS without prejudice
Plaintiff's Complaint, DIRECT the Clerk
of Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Plaintiff leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss claims sua sponte
pursuant to either Federal Rule of Civil Procedure 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 complaint'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)).
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.
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 § 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 § 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 file a response to this Court's Orders, the
Court is unable to move forward with this case. Moreover,
though Plaintiff was given ample time to follow the
Court's directives, he has not made any effort to do so
or to inform the Court as to why he cannot comply with its
directives. Indeed, Plaintiff has not taken any action in
this case since filing his unsigned Amended Complaint on
October 4, 2018.
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, as amended,
docs. 1, 4, for failure to prosecute and failure to follow
this Court's Orders 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 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 ...