United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's failure to
comply with the Court's December 6, 2018 Order to furnish
the Court with his prison trust fund account statement and
his consent to collection of fees from that account. Doc. 9.
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 Order 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.
brought this action pursuant to 42 U.S.C. § 1983 while
confined at Smith State Prison in Glennville, Georgia. Doc.
1. Plaintiff originally filed this action and accompanying
motion for leave to proceed in forma pauperis in the
Middle District of Georgia on October 18, 2018. Id.
On November 26, 2018, the Middle District transferred the
case to this Court. Doc. 5. The Court mailed a copy of the
notice of transfer to Plaintiff at his last known mailing
address. Doc. 8. On December 6, 2018, the Court granted
Plaintiff's motion to proceed in forma
pauperis. Doc. 9. In that Order, the Court
instructed Plaintiff to furnish the Court with a statement of
his prison trust fund account and the consent to collection
of fees from that account pursuant to 28 U.S.C. §
1915(b)(1). Id. at 2-3. The Court explained that, if
Plaintiff failed to complete and return these forms or
otherwise respond to the Court's directives by January 7,
2019, the Court would dismiss this case without prejudice for
failure to prosecute and follow this Court's Orders.
Id. at p. 4.
December 6, 2018, the Clerk of Court mailed a copy of the
Court's Order to Plaintiff at his last known place of
incarceration, and the Order was not returned to the Court as
undeliverable or otherwise failing to reach Plaintiff.
However, the Court has not received the requested forms from
Plaintiff or any pleading from Plaintiff which is responsive
to that Order. In fact, Plaintiff has not filed any pleadings
with this Court since he filed his Complaint on October 18,
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 Plaintiff's Complaint
without prejudice and DENY
Plaintiff leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 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)). 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)).
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.
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 provide the Court with his consent to collection of
fees and his trust account statement, as directed, the Court
is unable to move forward with this case, as it cannot
collect the required statutory fees. See 28 U.S.C.
§ 1915. Moreover, Plaintiff was given ample time to
follow the Court's directive, and Plaintiff 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 Complaint on
October 18, 2018.
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, doc. 1, for
failure to prosecute and failure to follow this Court's
Order 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 ...