United States District Court, S.D. Georgia, Waycross Division
RICKEY E. RICHARDS, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
Rickey Richards (“Richards”) filed a Motion to
Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255 to attack his sentence obtained in Case
Number 5:05-cr-6. Doc. 1. The Government filed a Response.
Doc. 5. For the reasons which follow, I
RECOMMEND the Court DISMISS without
prejudice Richards' Motion based on his failure
to comply with this Court's Order.
8, 2016, Richards filed a 28 U.S.C. § 2255 Motion to
Vacate, Set Aside, or Correct his Sentence while he was
housed at the Federal Correctional Institution in Jesup,
Georgia. Doc. 1. This Court directed Respondent to
respond to Richards's Motion and ordered Richards to
“immediately inform this Court in writing of any change
of address. Failure to do so will result in dismissal of this
case, without prejudice.” Doc. 2-1 at 1. This case was
reassigned to the undersigned as the referral judge on
September 5, 2018. The Court later entered an Order
administratively staying this case pending the lapse in
appropriations for the Department of Justice. Doc. 7. In
addition, the Court lifted this stay. Doc. 9. These Orders
were sent to Richards at his last known address, but these
Orders were returned to the Court as undeliverable. Docs. 6,
8, 10. Despite this Court's directive, Richards failed to
update his address, in writing, as required. In addition,
Richards has not taken any action in this case since he filed
his Motion on July 8, 2016. Doc. 1.
Court must now determine how to address Richards's
failure to comply with this Court's Order. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS without prejudice
Richards's § 2255 Motion and DENY
him leave to appeal in forma pauperis and a
Certificate of Appealability.
Dismissal for Failure to Follow this Court's
district court may dismiss a movant's claims for failure
to prosecute pursuant to Federal Rule of Civil Procedure
41(b) (“Rule 41(b)”) and 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. 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, where plaintiff did not respond to court order to
supply defendant's current address for purpose of
service); 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).
has failed to update the Court with his current address,
despite this Court's instruction to him regarding this
obligation. Doc. 2-1 at 1. Consequently, the Court has no
means by which it can communicate with Richards and is unable
to move forward with this case. Thus, the Court should
DISMISS without prejudice Richards's
§ 2255 Motion, doc. 1, for failure to follow this
Leave to Appeal in Forma Pauperis and Certificate of
Court should also deny Richards leave to appeal in forma
pauperis and a Certificate of Appealability. Though
Richards has, of course, not yet filed a notice of appeal, it
is proper to address these issues in the Court's order of
dismissal. Pursuant to Rule 11 of the Rules Governing Section
2255 Cases, “the district court must issue or
deny a certificate of appealability when it issues a final
order adverse to the applicant.” (Emphasis supplied);
see also Fed. R. App. P. 24(a)(3) (trial court may
certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or
after the notice of appeal is filed”).
appeal cannot be taken in forma pauperis if the
trial court certifies that the appeal is not taken in good
faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
Good faith in this context must be judged by an objective
standard. Busch v. County of Volusia, 189 F.R.D.
687, 691 (M.D. Fla. 1999). A party does not proceed in good
faith when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in
forma pauperis action is frivolous and not brought in
good faith if it is “without ...