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Clayton v. Davidson

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

July 16, 2019

EARNEST BARNARD CLAYTON, Plaintiff,
v.
DAVIDSON, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's failure to pay the filing fee in this case, Plaintiff's failure to file an Amended Complaint, and his corresponding failure to follow the Court's May 29, 2019 Order directing him to do the same. As explained in that Order, doc. 20, Plaintiff has sufficient resources to pay the filing fee, and the Court instructed Plaintiff that his failure to pay the filing fee by June 19, 2019 would result in the dismissal of his case. As of the date of this Order, Plaintiff has not paid the filing fee. For the following reasons, I RECOMMEND the Court DISMISS Plaintiff's Complaint, as amended, docs. 1, 11, 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.

         BACKGROUND

         Plaintiff filed this cause of action pursuant to 42 U.S.C. § 1983 contesting certain events occurring during his confinement at Georgia State Prison in Reidsville, Georgia. Doc. 1. Plaintiff simultaneously filed a motion to proceed in forma pauperis, doc. 2, and an accompanying inmate account statement, doc. 3. While this account statement reflected that Plaintiff did not have sufficient assets to pay the filing fee, the Magistrate Judge denied Plaintiff's motion and recommended the Court dismiss Plaintiff's Complaint as barred by the three strikes provision of 28 U.S.C. § 1915(g), doc. 5.

         Plaintiff then objected to the Report and Recommendation, doc. 9, and the Court granted Plaintiff leave to amend his Complaint, doc. 10. Plaintiff filed an Amended Complaint, doc. 11, as well as two additional motions to amend, docs. 15, 18. Plaintiff also filed a motion to deduct the filing fee. Doc. 19. That motion indicated that Plaintiff had sufficient resources to pay the filing fee in this case. Accordingly, the Court denied Plaintiff leave to proceed in forma pauperis, granted Plaintiff leave to amend his Complaint, and ordered Plaintiff to pay the requisite filing fee and file a single, consolidated Complaint by June 19, 2019. Doc. 20. The Court further informed Plaintiff that failure to comply with the Court's Order would result in his Complaint being dismissed without prejudice. Id. at 5. As of the date of this Order and Report and Recommendation, Plaintiff has yet to pay the filing fee or file an Amended Complaint.

         DISCUSSION

         The Court now addresses Plaintiff's failure to comply with this Court's directive. 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 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). 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 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 Order, 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.

         Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, as amended, docs. 1, 11, 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 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 ...


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