United States District Court, S.D. Georgia, Dublin Division
WILLIE E. NEWTON Plaintiff,
BRIAN OWENS, Member of Parole Board; TERRY E. BARNARD, Chairman of Board of Pardon and Parole; JAMES W. MILLS, Vice Chairman of Board of Pardon and Parole; WILLIAM CURRY, District Operation Manager, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPFS, UNITED STATES MAGISTRATE JUDGE
currently incarcerated at Johnson State Prison in
Wrightsville, Georgia, has submitted a complaint for filing
and seeks to proceed in forma pauperis (“IFP”).
(Doc. nos. 1, 2.) However, upon review of Plaintiff's
filings, the Court was unable to determine whether he is
attempting to assert a civil rights claim pursuant to 42
U.S.C. § 1983 or a petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254. By Order dated February 5,
2019, the Court explained to Plaintiff the difference between
a § 1983 complaint and a habeas petition and instructed
him to select which type of case he intended to bring. (See
doc. no. 3.)
Court instructed the Clerk to include an appropriate form
civil rights complaint used by incarcerated litigants in the
Southern District of Georgia and a form habeas corpus
petition with Plaintiff's service copy of the February
5th Order. (Id. at 2-3.) The Court directed
Plaintiff to make his selection as to a civil rights or
habeas corpus case by completing and returning the
appropriate form. (Id.) The Court cautioned
Plaintiff he should submit only one form in response to the
Order and his failure to comply with the terms of the
February 5th Order within fourteen days may result in a
recommendation that this case be dismissed. (Id. at
3.) Plaintiff did not respond to the Court's Order
allowing him an opportunity to identify the type of case he
wants to pursue, leaving the Court faced with the prospect of
a stagnant case that cannot move forward.
district court has authority to manage its docket to
expeditiously resolve cases, and this authority includes the
power to dismiss a case for failure to prosecute or failure
to comply with a court order. Equity Lifestyle Props., Inc.
v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,
1240 (11th Cir. 2009) (citing Fed.R.Civ.P. 41(b)); see also
Eades v. Ala. Dep't of Human Res., 298 Fed.Appx. 862, 863
(11th Cir. 2008) (“District courts possess the ability
to dismiss a case . . . for want of prosecution based on two
possible sources of authority: Fed.R.Civ.P. 41(b) or their
inherent authority to manage their dockets.”).
Moreover, the Local Rules of the Southern District of Georgia
dictate that an “assigned Judge may, after notice to
counsel of record, sua sponte . . . dismiss any action for
want of prosecution, with or without prejudice . . . [for]
failure to prosecute a civil action with reasonable
promptness.” Loc. R. 41.1(c). Finally, dismissal
without prejudice is generally appropriate pursuant to Rule
41(b) where a plaintiff has failed to comply with a court
order, “especially where the litigant has been
forewarned.” Owens v. Pinellas Cty. Sheriff's
Dep't, 331 Fed.Appx. 654, 655 (11th Cir. 2009) (citing
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)); see
also Loc. R. 41.1(b) (holding court may dismiss an action sua
sponte for “willful disobedience or neglect of any
order of the Court”). Plaintiff's failure to comply
with the terms of the Court's Order amounts not only to a
failure to prosecute, but also an abandonment of his case.
This Court will not allow a case to languish on its docket
because a litigant fails to comply with the most basic
instructions for informing the Court what type of case he
intends to pursue and the basis for his claims. This is
precisely the type of neglect contemplated by the Local
Rules. Furthermore, because Plaintiff sought permission to
proceed IFP, the Court finds that imposition of monetary
sanctions is not a feasible sanction.
Court recognizes that Plaintiff is proceeding pro se and
acknowledges that courts have voiced a dislike for the
harshness of dismissing a pro se case with prejudice prior to
an adjudication on the merits. See, e.g., Gormley v. Nix, No.
04-12374, 2005 WL 2090282, at *3-4 (11th Cir. Aug. 31, 2005);
Dickson v. Ga. State Bd. of Pardons & Paroles, No.
1:06-CV-1310-JTC, 2007 WL 2904168, at *6 (N.D.Ga. Oct. 3,
2007). Thus, the Court is simply recommending dismissal
without prejudice until such time as Plaintiff is willing to
file his case and pursue it. See Mobin v. Mobin, No.
15-11439, slip op. at 2-3 (11th Cir. Oct. 7, 2015) (affirming
dismissal without prejudice where incarcerated litigant
refused to comply with multiple court instructions to select
civil rights or habeas corpus relief).
reasons set forth herein, the Court REPORTS
and RECOMMENDS Plaintiff's motion to
proceed IFP be DENIED as
MOOT, (doc. no. 2), and this case be
DISMISSED without prejudice.
REPORTED and RECOMMENDED.
Unless the Court specifies otherwise, a
dismissal for failure to prosecute operates as an
adjudication on the merits. See ...