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Jenkins v. United States

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

March 20, 2019

TRAVIS LAVOY JENKINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         This 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.[1] I DENY as moot Jenkins's pending Motions. Docs. 3, 8, 12.

         BACKGROUND

         On 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.

         DISCUSSION

         The 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 pauperis.

         I. Dismissal for Failure to Follow this Court's Directive

         A 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.[2] 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 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)).

         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 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.

         Thus, 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.

         II. Leave to Appeal in Forma Pauperis

         The 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 is ...


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