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 pay
the filing fee in this case 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. 12, 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, 13,
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 this 42 U.S.C. § 1983 cause of action 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 and an accompanying inmate account statement.
Doc. 2. While this account statement reflected that Plaintiff
did not have sufficient assets to pay the filing fee, a
subsequent filing in another case revealed a change in
Plaintiff's financial circumstances. Case No.
6:17-cv-149, Doc. 19. That filing indicated that Plaintiff
had sufficient resources to pay the filing fee in this case.
Plaintiff also filed a motion to amend the complaint and
attached a proposed Amended Complaint. Doc. 8. Accordingly,
the Court granted Plaintiff leave to amend his Complaint,
denied Plaintiff leave to proceed in forma pauperis,
and ordered Plaintiff to pay the requisite filing fee by June
19, 2019. Doc. 12 at 3. The Court further informed Plaintiff
that failure to pay the filing fee would result in his
Complaint being dismissed without prejudice. Id. As
of the date of this Order and Report and Recommendation,
Plaintiff has yet to pay the filing fee.
Court must now determine how to address 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
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 § 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 § 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 pay the filing fee or a response to this
Court's Order, the Court is unable to move forward with
this case. Plaintiff was given ample time to follow the
Court's directives, but he has not made any effort to do
so or to inform the Court as to why he cannot comply with its
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, as amended,
docs. 1, 13, 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.
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 ...