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Sandoval v. Johns

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

September 10, 2019

MOISES JOSUE SANDOVAL, Petitioner,
v.
TRACY JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon Petitioner Moises Sandoval's (“Sandoval”) failure to comply with the Court's August 1, 2019 Order and Respondent's Motion to Dismiss. Docs. 4, 5. For the following reasons, I RECOMMEND the Court DISMISS Sandoval's Petition without prejudice for failure to follow the Court's Order. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Sandoval leave to appeal in forma pauperis.[1]

         BACKGROUND

         On May 28, 2019, Sandoval filed his 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus to challenge disciplinary sanctions imposed by a non-Bureau of Prisons' employee, which Sandoval claims was a violation of his right to due process. Doc. 1 at 2, 6. After Sandoval paid the requisite filing fee, the Court directed service of Sandoval's Petition. Doc. 3.

         Respondent filed his Motion to Dismiss on July 29, 2019, doc. 4, and the Court ordered Sandoval to respond to the Motion to Dismiss within 14 days of its Order on August 1, 2019, doc. 5. The Court advised Sandoval, if he failed to respond, the Court would determine he did not oppose the Motion, would grant it as unopposed, and deem Sandoval as failing to follow a Court Order. Id. Sandoval did not respond to the Court's Order within 14 days. In fact, Sandoval has made no filings in this case in over three months' time.

         DISCUSSION

         The Court must now determine how to address Sandoval's failure to comply with this Court's Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Sandoval's Petition. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Sandoval leave to appeal in forma pauperis.

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

         A district court may dismiss a petitioner's claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court's inherent authority to manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[2] 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)).

         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, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal).

         Sandoval failed to follow this Court's Order or to otherwise respond to the Motion to Dismiss, despite having ample opportunity to do so and being forewarned of his failure to do so. Doc. 5. Thus, the Court should DISMISS without prejudice Sandoval's § 2241 Petition. Doc. 1.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Sandoval leave to appeal in forma pauperis. Though Sandoval has not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not ...


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