United States District Court, S.D. Georgia, Waycross 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 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.
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.
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.
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
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
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
Dismissal for Failure to Prosecute and 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).
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 ...