Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malone v. Jones

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

March 13, 2019

WILLIAM MALONE, JR., Plaintiff,
v.
MALCOLM JONES; and RICKY STONES, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's failure to comply with the Court's Orders of July 19, 2018, and January 23, 2019. Docs. 3, 8. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, doc. 1, for failure to prosecute and failure to follow this Court's Orders 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.[1]

         BACKGROUND

         Plaintiff filed this 42 U.S.C. § 1983 action to contest certain conditions of his confinement while he was housed at Coffee Correctional Facility in Nicholls, Georgia. Doc. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis, and the Court granted that motion. Docs. 2, 3. In granting his motion, the Court advised Plaintiff he had 30 days to return his consent to collection of fees and trust account information forms. Doc. 3 at 3. By this same Order, the Court advised Plaintiff he must inform the Court in writing of any change of address, and his failure to do so would result in the dismissal without prejudice of this case. Id.

         Plaintiff requested an extension of time to return his documents, and the Court granted him an extension until October 15, 2018, to return his financial documents. Doc. 6. On November 2, 2018, Plaintiff called the Office of the Clerk of Court concerning the payment of his filing fee. Plaintiff maintained the finance department at his place of detention issued a check for $350.00 on September 21, 2018, but the check had not cleared the bank (nor had the Court received the payment). The Clerk of Court received a check in the amount of $350.00 on November 28, 2018, on Plaintiff's behalf. However, the receipt for payment and the Court's September 13, 2018 Order were returned as undeliverable on December 19, 2018. Doc. 7.

         On December 28, 2018, the Clerk mailed a letter, return receipt requested, addressed to Keith Etsey, the superintendent of the Clayton Transitional Center, as Plaintiff's last known address, to advise Mr. Etsey the check for the filing fee was returned due to insufficient funds. The Clerk advised Mr. Etsey the Transitional Center had 15 days to pay $403.00 to the Clerk of Court, which is $350.00 for Plaintiff's filing fee and $53.00 in fees for processing the check.[2]

         The Court then issued an Order on January 23, 2019, directing Plaintiff to show cause within 14 days of that Order why his Complaint should not be dismissed for failure to pay the filing fee or failure to return his financial forms and his failure to update his address. Doc. 8. The Court forewarned Plaintiff his failure to respond to this Court's Order or to otherwise show cause why his case should not be dismissed would result in this dismissal of this cause of action, without prejudice. Id. at 2. This Order was sent to Plaintiff at his last known address and was returned to the Court with the notation “[Return to Sender] RTS Released.” Doc. 9. As of the date of this Order and Report and Recommendation, the Court has not received funds for the filing fee, Plaintiff's financial forms, an updated address for Plaintiff, or a response to its show cause Order.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to pay the filing fee and failure to comply with this Court's Orders. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint and DENY Plaintiff 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 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);[3] 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)).

         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 § 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).

         Plaintiff has not responded to this Court's Orders, despite the Court specifically directing Plaintiff to do so and advising him of the consequences for failing to respond. Plaintiff has failed to diligently prosecute his claims, as he has not taken any action in this case since he moved for an extension of time to comply with the Court's July 19, 2018 Order, doc. 4, and called inquiring about his filing fee on November 2, 2018. Additionally, Plaintiff has failed to update the Court with his current address, despite the Court's instruction to him regarding this obligation and the consequences for failing to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.