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 upon Claimant Dwight
Allen's failure to update his address and failure to
prosecute this action. For the following reasons, I
RECOMMEND the Court DISMISS
Allen's “Affidavit of Truth” without
prejudice for failure to follow the Court's
directives and failure to prosecute. I further
RECOMMEND the Court DIRECT
the Clerk of Court to CLOSE this case and
enter the appropriate judgment of dismissal and
DENY Allen leave to appeal in forma
August 30, 2017, Plaintiff, then incarcerated at Dodge State
Prison in Chester, Georgia, filed an “Affidavit of
Truth” requesting the Court remove all cases from
January 1, 2005 to September 22, 2009 that were counted as
“strikes” against him under 28 U.S.C. §
1915(g). Doc. 1. Plaintiff asserted it was the intent of
Congress to remove strikes after a period of seven to ten
years from when they had accrued. Id. at 2. On
September 10, 2018, the Court mailed Plaintiff an Order
reassigning this case to the undersigned. This Order was
returned as undeliverable 10 days later on September 20,
2018, because Plaintiff was not at Dodge State Prison. Doc.
2. It is the Plaintiff's responsibility to ensure the
Court has a proper mailing address and contact information.
Plaintiff failed to provide any updated contact information
to the Court. Indeed, Plaintiff has not made any filings in
this case since his initial filing on August 30, 2017.
Court must now determine how to address Allen's failure
to update his address and failure to prosecute this action.
For the reasons set forth below, I RECOMMEND
the Court DISMISS without prejudice
Allen's cause of action and DENY him
leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Follow this
district court may dismiss a plaintiff'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 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
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). In 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
did not provide this Court with an updated address. This
Court has no means by which it can communicate with Allen and
is unable to move forward with this case. Allen has failed to
diligently prosecute his claims, as he has not taken any
action in this case for more than two years' time. For
these reasons, I RECOMMEND the Court
DISMISS without prejudice Allen's cause
Leave to Appeal in Forma Pauperis
Court should also deny Allen leave to appeal in forma
pauperis. Though Allen has not yet filed a notice of
appeal, it is appropriate to address this issue in the
Court's order of dismissal. See Fed. R. App. P.
24(a)(3) (providing trial court may certify that appeal 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, either before or after the notice of
appeal is filed, 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 ...