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Harden v. Gramiak

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

July 9, 2019

DERRICK DIONTAY HARDEN, Plaintiff,
v.
WARDEN TOM GRAMIAK, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO JUDGE.

         Plaintiff originally filed this cause of action in the Ware County, Georgia Superior Court, and Defendants filed a notice of removal in this Court. Doc. 1. Defendants filed a Motion to Dismiss, claiming Plaintiff has failed to prosecute this action and failed to respond to this Court's Order. Doc. 11-1 at 1. For the following reasons, I RECOMMEND the Court GRANT as unopposed Defendants' Motion to Dismiss, doc. 11, DISMISS the Complaint, doc. 1, for Plaintiff's failure to follow this Court's Orders and failure to prosecute, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         Plaintiff filed his 42 U.S.C. § 1983 Complaint to contest certain events allegedly occurring while he was incarcerated at Ware State Prison in Waycross, Georgia. Doc. 1. Plaintiff claims that Defendants violated his First Amendment rights by interfering with his access to courts. Doc. 1-1 at 22. As noted above, Plaintiff originally filed his cause of action in the Ware County Superior Court, but Defendants removed the cause of action to this Court. Doc. 1. After removal, the Court entered a Scheduling Order instructing Plaintiff that he was responsible for informing the Court and defense counsel immediately of any change of address and that failure to do so may result in the dismissal of his case. Doc. 4 at 3. However, when the Clerk of Court mailed Plaintiff a copy of an August 8, 2018 Order granting the parties additional time to complete discovery, that Order was returned as undeliverable. Doc. 9. A subsequent case reassignment Order was also returned, doc. 10, and both returned Orders indicated that Plaintiff had been released from prison.

         After the second Order was returned as undeliverable, Defendants filed a Motion to Dismiss Plaintiff's action for failure to prosecute and failure to comply with a Court Order. Doc. 11. Defendants indicated they attempted to notice Plaintiff's deposition, but Plaintiff had failed to update his address. Id. at 2. Defendants attached a Georgia Department of Corrections' document reflecting that Plaintiff had been released from state custody. Doc. 11-3. The Court then entered an Order on October 12, 2018 directing Plaintiff to file a response either opposing or indicating his lack of opposition to Defendant's Motion to Dismiss within 21 days. That Order also was returned as undeliverable, doc. 13, and as of the date of this Order, Plaintiff has not filed any documents in this case since March 9, 2018, doc. 5.

         DISCUSSION

         The 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 GRANT Defendants' unopposed Motion to Dismiss, DISMISS Plaintiff's Complaint, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis.

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

         A 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)).[1] 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). However, such a dismissal is warranted in this case. Plaintiff has disregarded multiple Orders directing him to update his current address and to respond to Defendants' Motion to Dismiss. Doc. 4 at 3; Doc. 12. With Plaintiff having failed to file a response to this Court's Orders and Defendants unable to locate and depose Plaintiff, this case cannot proceed. 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. Indeed, Plaintiff has not taken any action in this case since filing a motion for appointment of counsel on March 9, 2018. Doc. 5.

         Thus, I RECOMMEND the Court GRANT Defendants' unopposed Motion to Dismiss, DISMISS Plaintiff's Complaint, doc. 1, for failure to prosecute and failure to follow this Court's Orders, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case.

         II. Leave to Appeal in Forma Pauperis

         The 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 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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