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Smith v. Paga

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

May 7, 2019

NATHAN SMITH, Plaintiff,
v.
MR. FNU PAGA; TIM WILLIAMS; SHERIFF LARRY DEAN; and FRANK MESSINA, in their individual and official capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's failure to comply with the Court's Order of March 21, 2019. Doc. 7. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, doc. 1, for failure to prosecute and failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.[1]

         BACKGROUND

         Plaintiff filed this 42 U.S.C. § 1983 while he was housed at the Laurens County Jail in Dublin, Georgia, to contest certain events allegedly occurring in Brunswick, Georgia. Doc. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. Doc. 2. Prior to this Court's review of Plaintiff's Complaint and motion, however, the Court entered an Order staying proceedings in this case due to a lapse in appropriations by the federal government. Doc. 3. The Court also issued an Order lifting the stay. Doc. 4. The Clerk of Court mailed these Orders to Plaintiff at the address he provided. However, these Orders were returned to the Court as undeliverable because Plaintiff was no longer at the Laurens County Jail. Docs. 5, 6.

         The Court then issued an Order on March 21, 2019, directing Plaintiff to show cause within 14 days of that Order why his Complaint should not be dismissed for his failure to update his address. Doc. 7. The Court forewarned Plaintiff his failure to respond to this Court's Order or to otherwise show cause why his case should not be dismissed would result in this dismissal of this cause of action, without prejudice. Id. at 1-2. This Order was sent to Plaintiff at his last known address and was returned to the Court as undeliverable. Doc. 8. As of the date of this Order and Report and Recommendation, the Court has not received an updated address for Plaintiff or a response to its show cause Order.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's Order and failure to prosecute. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint and DENY Plaintiff leave to appeal in forma pauperis.

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

         A district court may dismiss a plaintiff'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);[2] 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 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 § 1983 complaint, 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 § 1983 claims, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         Plaintiff has not responded to this Court's Order, despite the Court specifically directing Plaintiff to do so and advising him of the consequences for failing to respond. Plaintiff has failed to diligently prosecute his claims, as he has not taken any action in this case since he filed his Complaint and motion to proceed in forma pauperis. Docs. 1, 2. Plaintiff has failed to respond to this Court's Order, despite the Court's instruction regarding this obligation and the consequences for failing to respond to this Court's Order. Doc. 7. The Court has no means by which it can communicate with Plaintiff and is unable to move forward with this case.

         Thus, the Court should DISMISS without prejudice Plaintiff's §1983 Complaint, doc. 1, for failure to prosecute and failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         II. Leave to Appeal i ...


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