United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO JUDGE.
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.
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.
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.
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.
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). 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.
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.
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 not taken in good
faith “before or after the notice of appeal is
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 ...