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Perez v. Johns

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

February 27, 2019

LAZARO CRIBEIRO PEREZ, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Petitioner Lazaro Perez's (“Perez”) failure to comply with the Court's April 25, 2018 Order and Respondent's Motion to Dismiss. Docs. 8, 12. For the following reasons, I RECOMMEND the Court DISMISS Perez's Petition without prejudice for failure to follow the Court's directives, or, in the alternative, GRANT Respondent's Motion to Dismiss and DISMISS Perez's Petition without prejudice for failure to exhaust his administrative remedies.[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 Perez leave to appeal in forma pauperis.

         BACKGROUND

         On February 20, 2018, Perez filed his 28 U.S.C. § 2241 Petition in the District Court for the Northern District of Georgia. Doc. 1. That court transferred Perez's Petition to this District on March 1, 2018. Docs. 2, 3. Perez did not pay the required filing fee or move to proceed in forma pauperis when filing this action. Accordingly, on March 1, 2018, the Clerk of Court directed Perez to either pay the $5.00 filing fee or file a motion to proceed in forma pauperis. Doc. 5. The Clerk warned Perez that his failure to comply with that notice may result in dismissal of this action. Id. That mailing was not returned as undeliverable or as otherwise failing to reach Perez. Perez failed to pay the requisite filing fee or move to proceed in forma pauperis within the allotted time, and the United States Magistrate Judge recommended the Court dismiss without prejudice Perez's Petition based on his failure to follow this Court's directive. Doc. 6. In response, Perez paid the requisite filing fee and filed an Amended Petition. Doc. 7. The Magistrate Judge vacated the Report and Recommendation and directed service of Perez's Amended Petition. Doc. 8.

         In his Amended Petition, Perez asserts the Bureau of Prisons (“BOP”) erroneously classified him as a deportable alien without an immigration detainer. Doc. 7 at 7. Perez alleges he was diagnosed with Peyronie's disease and has been denied medical attention. Id. Additionally, Perez contends the case manager refused to file an application for placement in a halfway house based on the false immigration proceedings. Id.

         Respondent moved to dismiss Perez's Petition for the following reasons: Perez failed to exhaust his administrative remedies; Perez sets forth conditions-of-confinement claims that are not cognizable under § 2241; Perez is not in the custody of Immigration and Customs Enforcement (“ICE”); and Perez's challenge to his status as a deportable alien exceeds the scope of judicial review of BOP's decisions. Doc. 12. Perez filed a Response to the Motion to Dismiss. Doc. 14.

         Before the Court could review Perez's Amended Petition and Respondent's Motion to Dismiss, however, the Court administratively stayed the proceedings in this case due to the lapse in federal appropriations by Order dated January 11, 2019. Doc. 15. That Order was sent to Perez at the most recent address the Court has for him, and Perez's mail was returned as undeliverable with the notation Perez was “Not at this Facility.” Docs. 16, 18. The stay was lifted, notice was sent to Perez, and that notice was returned as undeliverable as well. Docs. 17, 19. Perez has made no filings since he responded to the Motion to Dismiss on June 18, 2018.

         DISCUSSION

         The Court must now determine how to address Perez's failure to comply with this Court's Orders. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Perez's Petition. In the alternative, I RECOMMEND the Court GRANT Respondent's Motion to Dismiss and DISMISS without prejudice Perez's Petition based on his failure to exhaust administrative remedies. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Perez leave to appeal in forma pauperis.

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

         A district court may dismiss a petitioner'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 petitioner'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, 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).

         Perez has failed to update the Court with his current address, despite the Court's instruction to him regarding this obligation. Doc. 8 at 2. The Court has attempted to notify Perez of filings in this case multiple times, and those notices have been returned as undeliverable. Docs. 16, 17, 19. The Court has no means by which it can communicate with Perez and is unable to move forward with this ...


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