United States District Court, S.D. Georgia, Dublin Division
WILLIE E. NEWTON, Plaintiff,
BRIAN OWENS, Vice-Chairman, and WILLIAM CURRY, District Operation Manager, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
incarcerated at Johnson State Prison in Wrightsville,
Georgia, filed the above-captioned case pursuant to 42 U.S.C.
§ 1983 and seeks to proceed in forma pauperis
(“IFP”). (Doc. nos. 1, 2.) However, upon initial
review of Plaintiff's filings, the Court was unable to
determine whether he is attempting to assert a civil rights
claim pursuant to 42 U.S.C. § 1983, or is attempting to
petition for habeas corpus relief. In an Order dated August
23, 2019, the Court explained to Plaintiff the difference
between a § 1983 complaint and a petition for habeas
corpus relief and instructed him that he must make a
selection as to which type of case he intended to bring. (See
doc. no. 4.)
Court also instructed the Clerk to include an appropriate
form civil rights complaint used by incarcerated litigants in
the Southern District of Georgia and a form habeas corpus
petition with Plaintiff's service copy of the August 23rd
Order. (Id. at 2.) The Court directed Plaintiff to
make his selection as to a civil rights or habeas corpus case
by returning the appropriate form of the two provided by the
Clerk. (Id. at 2.) The Court cautioned Plaintiff he
should submit only one form in response to the Order and that
his failure to comply with the terms of the August 23rd Order
within fourteen days may result in a recommendation that this
case be dismissed. (Id. at 3.)
did not respond to the Court's Order directing him to
identify the type of case he wants to pursue.
Problematically, Plaintiff's refusal to respond as
instructed in the instant case leaves the Court faced with
the prospect of a stagnant case that cannot move forward.
district court has authority to manage its docket to
expeditiously resolve cases, and this authority includes the
power to dismiss a case for failure to prosecute or failure
to comply with a court order. Equity Lifestyle Props.,
Inc. v. Fla. Mowing & Landscape Serv.,
Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (citing
Fed.R.Civ.P. 41(b)); see also Eades v. Ala. Dep't of
Human Res., 298 Fed.Appx. 862, 863 (11th Cir. 2008) (per
curiam) (“District courts possess the ability to
dismiss a case . . . for want of prosecution based on two
possible sources of authority: Fed.R.Civ.P. 41(b) or their
inherent authority to manage their dockets.”).
Moreover, the Local Rules of the Southern District of Georgia
dictate that an “assigned Judge may, after notice to
counsel of record, sua sponte . . . dismiss any action for
want of prosecution, with or without prejudice . . . [for]
[w]illful disobedience or neglect of any order of the Court;
or [a]ny other failure to prosecute a civil action with
reasonable promptness.” Loc. R. 41.1 (b) & (c).
Finally, dismissal without prejudice is generally appropriate
pursuant to Rule 41(b) where a plaintiff has failed to comply
with a court order, “especially where the litigant has
been forewarned.” Owens v. Pinellas Cty.
Sheriff's Dep't, 331 Fed.Appx. 654, 655
(11th Cir. 2009) (per curiam) (citing Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).
the Court ordered Plaintiff to make a selection as to whether
he sought to pursue monetary relief under § 1983 or
habeas corpus relief in the form of release from prison and
to set forth his claims on the standard form used by
incarcerated litigants in the Southern District of Georgia.
(Doc. no. 4.) The Court also explained to Plaintiff the
difference between a § 1983 civil rights case and a
habeas corpus case. (Id. at 1-2.) Furthermore, the
Court warned Plaintiff that failing to make an election as to
the type of case he intends to pursue would result in a
recommendation for dismissal of this case without prejudice.
(See Id. at 3.)
failure to comply with the terms of the Court's Order
amounts not only to a failure to prosecute, but also an
abandonment of his case. This Court will not allow a case to
languish on its docket because a litigant fails to comply
with the most basic instructions for informing the Court what
type of case he intends to pursue and the basis for his
claims. This is precisely the type of neglect contemplated by
the Local Rules. Furthermore, because Plaintiff sought
permission to proceed IFP, the Court finds that the
imposition of monetary sanctions is not a feasible sanction.
Court recognizes that Plaintiff is proceeding pro se and
acknowledges that courts have voiced a dislike for the
harshness of dismissing a pro se case with prejudice prior to
an adjudication on the merits. See, e.g., Gormley v.
Nix, No. 04-12374, 2005 WL 2090282, at *3-4 (11th Cir.
Aug. 31, 2005); Dickson v. Ga. State Bd. of Pardons &
Paroles, No. 1:06-CV-1310-JTC, 2007 WL 2904168, at *6
(N.D.Ga. Oct. 3, 2007). Thus, the Court is simply
recommending dismissal without prejudice until such time as
Plaintiff is willing to file his case and pursue it. See
Mobin v. Mobin, No. 15-11439, slip op. at 2-3 (11th Cir.
Oct. 7, 2015) (affirming dismissal without prejudice where
incarcerated litigant refused to comply with court
instructions to select civil rights or habeas corpus relief).
reasons set forth herein, the Court REPORTS
and RECOMMENDS the motion to proceed IFP be
DENIED as MOOT, (doc. no.
2), and this case be DISMISSED without
REPORTED and RECOMMENDED.
 The Court also explained that because
it was unclear whether Plaintiff intended to proceed with a
habeas corpus case or § 1983 civil rights case, it was
also unclear whether Plaintiff, through his IFP motion, was
contending he cannot pay the $5.00 habeas corpus filing fee
or the $350.00 filing fee for an IFP civil rights complaint.
(Doc. no. 4, p. 2.)
Unless the Court specifies otherwise, a
dismissal for failure to prosecute operates as an
adjudication on the merits. See ...