United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Petitioner Travis
Jenkins's (“Jenkins”) failure to comply with
the Court's directive of November 14, 2018. Doc. 7. For
the following reasons, I RECOMMEND the Court
DISMISS without prejudice Jenkins's 28
U.S.C. § 2241 Petition, doc. 1, for failure to follow
this Court's directive, DIRECT the Clerk
of Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Jenkins leave to appeal in forma
pauperis. I DENY as moot
Jenkins's pending Motions. Docs. 3, 8, 12.
October 17, 2018, Jenkins filed his § 2241 Petition in
the United States District Court for the Eastern District of
North Carolina. Doc. 1. That court transferred Jenkins's
Petition to this Court on November 14, 2018, after finding
venue proper in this Court, as Jenkins is incarcerated in
Jesup, Georgia. Docs. 4, 5. However, Jenkins did not pay the
required filing fee or move to proceed in forma
pauperis when filing this action. Accordingly, on
November 14, 2018, the Clerk of Court directed Plaintiff to
either pay the $5.00 filing fee or file a motion to proceed
in forma pauperis within 21 days. Doc. 7. The Clerk
warned Jenkins 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 Jenkins. Jenkins has not paid the requisite
filing fee or moved to proceed in forma pauperis.
Court must now address Jenkins's failure to pay the
filing fee and failure to comply with this Court's
directive. For the reasons set forth below, I
RECOMMEND the Court DISMISS without
prejudice Jenkins's Petition and
DENY Jenkins leave to appeal in forma
Dismissal for Failure to Follow this Court's
district court may dismiss a petitioner'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 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)).
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.
(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 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 where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal). With Jenkins having
neither paid the filing fee nor moved to proceed in forma
pauperis, the Court cannot proceed in this case.
See 28 U.S.C. §§ 1914 & 1915.
Moreover, Jenkins was given ample notice of the consequences
of his failure to follow the Court's directive, and
Jenkins has not made any effort to do so or to otherwise
prosecute this case.
the Court should DISMISS without prejudice
Jenkins's § 2241 Petition, doc. 1, for failure to
follow this Court's directive 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 Jenkins leave to appeal in forma
pauperis. Though Jenkins has, of course, not yet filed a
notice of appeal, it would be appropriate to address that
issue in the Court's order of dismissal. See
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal