United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendants' Motion for
Summary Judgment, doc. 26, and Motion to Dismiss for Failure
to Prosecute, doc. 28, as well as Plaintiff's failure to
comply with this Court's Orders. For the following
reasons, I RECOMMEND the Court
GRANT Defendants' Motion to Dismiss for
Failure to Prosecute, DENY as moot
Defendants' Motion for Summary Judgment, DISMISS
without prejudice Plaintiff's Complaint, doc. 1,
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.
19, 2017, Plaintiff filed this action challenging the
conditions of his confinement while incarcerated at Coffee
Correctional Facility in Nicholls, Georgia. Doc. 1. Some of
Plaintiff's claims against certain Defendants have been
dismissed, but Plaintiff's claims against Defendants
Stone and Sizemore remain pending before this Court. Doc. 20
at 2. On April 25, 2018, Defendants filed a Motion for
Summary Judgment, doc. 26. That same day, the Clerk's
Office sent Plaintiff a notice of the filing and warned
Plaintiff that if he failed to submit a timely response,
“[T]he consequence may be that the Court will deem the
motion unopposed, and the Court may enter judgment against
you.” Doc. 27. Under this Court's Local Rules,
Plaintiff had until May 16, 2018 (21 days after Defendants
filed their Motion), to respond in opposition. Local R. 7.5.
However, Plaintiff did not respond to Defendants' Motion,
and on May 21, 2018, Defendants filed a Motion to Dismiss,
arguing the Court should dismiss Plaintiff's claims for
failure to prosecute. Doc. 28.
September 13, 2018, this Court ordered Plaintiff to respond
to Defendants' Motion to Dismiss within 21
days. Doc. 30. The Court again cautioned,
“If Plaintiff fails to file a timely response, the
Court will presume that Plaintiff does not oppose the Motion
and may dismiss individual claims or the entire
action.” Id. at 1. Plaintiff failed to submit
any additional filings in this action until November 5, 2018,
on which date he submitted an unsigned (and therefore,
deficient) notice of change of address. Docs. 31, 32.
Though Plaintiff was ordered to correct this deficiency or
face “possible sanctions, to include dismissal[,
]” Plaintiff did not return a signed document. Doc. 32.
This Court has not received any pleadings from Plaintiff
since he filed his deficient notice of change of address.
Court must now determine how to address Plaintiff's
failure to comply with the Court's directives. For the
reasons set forth below, I RECOMMEND the
Court GRANT Defendants' Motion to
Dismiss, 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
“may dismiss a claim if the plaintiff fails to
prosecute it or comply with a court order.” Coleman
v. St. Lucie Cty. Jail, 433 Fed.Appx. 716, 718, (11th
Cir. 2011). A 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 v. Tallahassee Police Dep't, 205
Fed.Appx. 802, 802-03 (11th Cir. 2006).
the Court exercises its discretion to dismiss cases with
caution, in this action, dismissal of this action without
prejudice is warranted. See Coleman, 433 Fed.Appx.
at 719 (upholding dismissal without prejudice for failure to
prosecute a § 1983 complaint when 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).
failed to file responses to Defendants' Motion for
Summary Judgment and Defendants' Motion to Dismiss and
failed to respond to the Court's Orders. Despite three
warnings that his case would be dismissed if Plaintiff did
not respond, Plaintiff still failed to do so. Indeed,
Plaintiff has not taken any action in this case since filing
the deficient notice of change of address on November 5,
2018. Doc. 31. Plaintiff was given ample time to follow the
Court's directives, but he has not made any effort to do
so or to inform the Court as to why he cannot comply with its
directives. Moreover, Plaintiff's failure to file
responses to Defendants' Motion to Dismiss indicates the
Motion is unopposed. Doc. 30 at 1 (quoting Local R. 7.5
(“Failure to respond within the applicable time period
shall indicate that there is no opposition to a
motion.”)). As Plaintiff has not oppose Defendants'
request for dismissal, I RECOMMEND the Court
GRANT Defendants' Motion to Dismiss,
doc. 28, DISMISS without prejudice
Plaintiff's Complaint, doc. 1, 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 is not taken in good
faith “before or after the notice of appeal is
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 not brought in
good faith if it is “without ...