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Upshaw v. Howard

United States District Court, S.D. Georgia, Statesboro Division

January 23, 2019

RICKEY LEE UPSHAW, Plaintiff,
v.
JESSICA HOWARD; OFFICER HILL; and TERRY JONES, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Plaintiff, 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.

         In each 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.

         DISCUSSION

         The 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.

         I. Dismissal for Failure to Prosecute and Failure to Follow this Court's Orders

         A 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)).[1] 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)).

         It is 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.

         While 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.

         Thus, I 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.

         II. Leave to Appeal in Forma Pauperis

         The 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 ...


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