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Richards v. United States

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

April 17, 2019

RICKEY E. RICHARDS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Movant 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.[1]

         BACKGROUND

         On July 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.[2] 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.

         DISCUSSION

         The 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.

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

         A 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.[3] Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[4] 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); 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).

         Richards 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 Court's Order.[5]

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

         The 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”).

         An 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 ...


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