United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon Plaintiff John Cary
Carter's (“Carter”) failure to comply with
the Court's Order of October 16, 2018, doc. 5, his
failure to update his address, and his failure to prosecute
this action. For the following reasons, I
RECOMMEND the Court DISMISS
Carter's Complaint without prejudice for
failure to follow the Court's Orders 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 Carter leave
to appeal in forma pauperis.
18, 2018, Plaintiff filed his Complaint under 42 U.S.C.
§ 1983, contesting certain conditions of his confinement
at Smith State Prison in Glennville, Georgia, as well as
other Georgia prisons. Doc. 1. Concurrently, Plaintiff filed
a motion to proceed in forma pauperis. Doc. 2.
Plaintiff filed a notice of change of address on September
10, 2018, informing the Court that he would be held at
Telfair State Prison until his release from state custody on
September 17, 2018. Doc. 4. Plaintiff did not indicate in
that notice or in any later filing where he would reside
after September 17, 2018. The Court granted Carter's
motion on October 16, 2018 and ordered Carter 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. 5 at 3. The Court also
ordered Carter to sign and return the Consent to Collection
of Fees form and the Prisoner Trust Account statement and
provided copies of both forms. Doc. 5. The Court also
required Carter respond to the Order by November 15, 2018, or
his case would be dismissed “without prejudice for
failure to prosecute and follow this Court's
Orders.” Id. at 4.
October 24, 2018, Carter's mail was returned as
undeliverable because Carter was no longer at Telfair State
Prison. Doc. 6. While Carter may not have received a copy of
the Order directing him to update his address with the Court,
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 notice of change of address on September
Court must now determine how to address Carter's failure
to comply with this Court's Orders, failure to update his
address, and failure to prosecute this action. For the
reasons set forth below, I RECOMMEND that
the Court DISMISS without prejudice
Carter's Complaint 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 Cir. 1983)).
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
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).
the Court's directions, Carter has failed to sign and
return the required Trust Fund Account Statement and the
Consent to Collection of Fees from Trust Account form.
Additionally, Carter did not provide this Court with an
updated address. This Court has no means by which it can
communicate with Carter and is unable to move forward with
this case. In addition, Carter has failed to diligently
prosecute his claims, as he has not taken any action in this
case for more than six months' time. For these reasons, I
RECOMMEND the Court DISMISS without
prejudice Carter's Complaint, doc. 1.
Leave to Appeal in Forma Pauperis
Court should also deny Carter leave to appeal in forma
pauperis. Though Carter 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