United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's failure to
update his address and comply with multiple Court Orders
requiring him to do the same. For the following reasons, I
RECOMMEND the Court DISMISS
the Complaint, doc. 1, without prejudice for
Plaintiff's failure to follow this Court's Orders and
failure to prosecute 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.
filed his 42 U.S.C. § 1983 Complaint to contest certain
events allegedly occurring while he was incarcerated at
Georgia State Prison in Reidsville, Georgia. Doc. 1.
Plaintiff then filed two supplements to this Complaint,
contesting events occurring at Georgia Diagnostic &
Classification Prison in Jackson, Georgia. Docs. 8, 13. On
February 21, 2018, the Court granted Plaintiff leave to
proceed in forma pauperis and instructed Plaintiff
that he was 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. 9 at 3.
the Clerk of Court twice attempted to mail Plaintiff a copy
of a July 19, 2018 Order directing payments to be made from
Plaintiff's prison account, and on both occasions, the
mail was returned as undeliverable. Docs. 17, 18. On June 5,
2019, the Court ordered Plaintiff to file a notice by June
26, 2019, either confirming that he remains incarcerated at
Georgia Diagnostic & Classification Prison or providing
the Court with his current address. Doc. 20. The Court
advised Plaintiff that failure to comply with that Order
would result in his Complaint being dismissed without
prejudice. Id. The Clerk of Court mailed a copy of
Court's June 5, 2019 Order to Plaintiff's last known
address, and the mail was returned as undeliverable. Doc. 21.
Plaintiff has not filed any document in this case since April
Court must now determine how to address Plaintiff's
failure to comply with this Court's directives. For the
reasons set forth below, I RECOMMEND the
Court DISMISS Plaintiff's Complaint
without prejudice, DIRECT
the Clerk of Court to CLOSE this case and
enter the appropriate judgment of dismissal, and
DENY Plaintiff leave to appeal in forma
Dismissal for Failure to Prosecute and Failure to Follow this
district court may dismiss claims sua sponte
pursuant to either Federal Rule of Civil Procedure 41(b) or
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 Section 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 Section 1983
claims, where plaintiff failed to follow court order to file
amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal). With Plaintiff having
failed to file a response to this Court's Orders, the
Court is unable to move forward with this case. Moreover,
though Plaintiff was given ample time to follow the
Court's directives, he has not made any effort to do so
or to inform the Court as to why he cannot comply with its
directives. Additionally, Plaintiff has not provided the
Court with his current address. Indeed, Plaintiff has not
taken any action in this case since filing his Amended
Complaint on April 27, 2018.
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, doc. 1, for
failure to prosecute and failure to follow this Court's
Orders and DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal.
Leave to Appeal in Forma Pauperis
Court should also deny Plaintiff leave to appeal in forma
pauperis. Though Plaintiff has not yet filed a notice of
appeal, it is proper to address these issues in the
Court's order of dismissal. See Fed. R. App. P.
24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is ...