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Ponder v. Allen

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

February 1, 2019

JEREMIAH DEANGELO PONDER, Plaintiff,
v.
MARTY ALLEN, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon Plaintiff Jeremiah Ponder's (“Ponder”) failure to comply with the Court's Order on November 9, 2018, doc. 5, his failure to update his address, and his failure to prosecute this action. For the following reasons, I RECOMMEND the Court DISMISS Ponder's Complaint without prejudice for failure to follow the Court's directives and failure to prosecute and DENY as moot all pending Motions.[1] I further RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Ponder leave to appeal in forma pauperis.

         BACKGROUND

         On October 18, 2018, Plaintiff filed his 42 U.S.C § 1983 Complaint, contesting certain conditions of his confinement at Georgia State Prison in Reidsville, Georgia. Doc. 1. Concurrently, Plaintiff filed a motion for leave to proceed in forma pauperis. Doc. 3. The Court granted Ponder's motion on November 9, 2018, and ordered Ponder to “immediately inform this Court in writing of any change of address. Failure to do so will result in dismissal of this case . . . .” Doc. 5 at 3. The Court also ordered Ponder to sign and return the Consent to Collection of Fees form and the Prisoner Trust Account statement and provided copies of both forms. Doc. 5. The Court also required Ponder respond to the Order by December 10, 2018, or his case would be dismissed “without prejudice for failure to prosecute and follow this Court's Orders.” Id. at 4.

         On November 11, 2018, the Court's Order was returned as undeliverable because Ponder was no longer at Georgia State Prison. Doc. 6. While Ponder may not have received a copy of the Order directing him to update his address with the Court, it is the Plaintiff's responsibility to ensure the Court has a proper mailing address and contact information. Plaintiff failed to provide any updated contact information to the Court. Indeed, Plaintiff has not made any filings in this case since his initial Complaint and motion to proceed in forma pauperis on October 18, 2018, and the Court has no means by which to communicate with Ponder.

         DISCUSSION

         The Court must now determine how to address Ponder's failure to comply with this Court's Orders, failure to update his address, and failure to prosecute this action. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Ponder's Complaint and DENY him leave to appeal in forma pauperis.

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

         A district court may dismiss a plaintiff's claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court's inherent authority to manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[2] 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. 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)).

         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). In 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, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         Despite the Court's directions, Ponder has failed to sign and return the required Prisoner Trust Fund Account Statement and the Consent to Collection of Fees from Trust Account form. Additionally, Ponder did not provide this Court with an updated address. This Court has no means by which it can communicate with Ponder and is unable to move forward with this case. Ponder has failed to diligently prosecute his claims, as he has not taken any action in this case for more than three months' time. For these reasons, I RECOMMEND the Court DISMISS without prejudice Ponder's Complaint, doc. 1.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Ponder leave to appeal in forma pauperis. Though Ponder has not yet filed a notice of appeal, it is appropriate to address this issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (providing trial court may certify that appeal is ...


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