United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's failure to
comply with the Court's July 16, 2019 Order. Doc. 4. For
the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint, doc. 1, for failure to follow this Court's
directives 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. I DENY as moot
Plaintiff's Motion for Leave to Proceed in Forma
Pauperis in this Court. Doc. 2.
April 3, 2019, Plaintiff, proceeding pro se, filed a
Complaint against Bulloch County officials. Doc. 1. Plaintiff
also filed a motion to proceed in forma pauperis.
Doc. 2. The Court deferred ruling on Plaintiff's motion
because he used an application which was not on the
Court's preferred form. Doc. 4. The Court directed
Plaintiff to submit his application on the provided form
within 14 days of the July 16, 2019 Order. Id. at 2.
By this same Order, Plaintiff was advised that his failure to
timely comply with the Court's Order or to notify the
Court of any change in address would result in the dismissal
of his cause of action. Id. On July 24, 2019, that
Order was returned to the Court as “not
deliverable” because Plaintiff was “not in
custody” at his last known address. Doc. 5. Plaintiff
did not advise the Court of any change in his address. In
addition, Plaintiff has not filed any pleading with the Court
since April 29, 2019. Doc. 3.
Court must now determine how to address Plaintiff's
failure to comply with this Court's Order. For the
reasons set forth below, I RECOMMEND the
Court DISMISS without prejudice
Plaintiff's Complaint and DENY Plaintiff
leave to appeal in forma pauperis.
Dismissal for Failure to Follow this Court's
district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 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 plaintiff'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 not followed
the Court's directives and not providing the Court with
his current address, the Court cannot move forward with this
case. Moreover, Plaintiff was given ample notice of the
consequences of his failure to follow the Court's
directives, and Plaintiff has not made any effort to do so or
to otherwise prosecute this case.
the Court should DISMISS without prejudice
Plaintiff's Complaint, doc.1, for failure to follow this
Court's directives 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 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 taken in
good faith “before or after the notice of appeal is
appeal cannot be taken in forma pauperis if the
trial court certifies, either before or after the notice of
appeal is filed, 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 ...