United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
has failed to update his address and has failed to comply
with multiple Court Orders requiring him to do the same. The
Court is, therefore, is unable to move forward with this
case. 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, DENY Plaintiff's Motions for
Temporary Restraining Orders, docs. 3, 5, 10, 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.
initially filed this 42 U.S.C. § 1983 action in the
United States District Court for the Northern District of
Georgia, contesting, among other things, certain conditions
of his confinement at Georgia State Prison in Reidsville,
Georgia. Doc. 1. That court then transferred Plaintiff's
claims arising from events occurring at Georgia State Prison
to this District. Doc. 14. Prior to transferring this action,
the Northern District granted Plaintiff leave to proceed
in forma pauperis and notified Plaintiff that
failure to keep the Court apprised of his address at all
times could result in dismissal of his Complaint. Doc. 6.
20, 2019, this Court ordered Plaintiff to confirm that he was
still incarcerated at Georgia State Prison, as the Georgia
Department of Corrections' website indicated that he was
released from state custody, but Plaintiff had not informed
the Court of his release. Doc. 17. That Order was returned as
undeliverable on July 1, 2019 and marked as “unable to
forward.” Doc. 18. The Court's June 20, 2019 Order
required Plaintiff to file a notice with this Court
confirming his current address by July 11, 2019. Doc. 17 at
2. As of the date of this Order, Plaintiff has not filed any
response to that Order.
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 § 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).
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 adequate 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
a Motion for a Temporary Restraining Order on June 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 i ...