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Hammitt v. Stone

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

February 4, 2019

DEWEL HAMMITT, Plaintiff,
v.
CHIEF/WARDEN RICKY STONE; and UNIT MANAGER SIZEMORE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         BACKGROUND

         On May 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.

         On September 13, 2018, this Court ordered Plaintiff to respond to Defendants' Motion to Dismiss within 21 days.[1] 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.[2] 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.

         DISCUSSION

         The 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.

         I. Dismissal for Failure to Prosecute

         Courts “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).

         While 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).

         Plaintiff 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.

         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 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 not brought in good faith if it is “without ...


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