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Carter v. Sullivan

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

November 6, 2019

RANK CARTER, Plaintiff,
v.
OFFICER FNU SULLIVAN; OFFICER FNU EVANS; TOOMBS COUNTY DETENTION CENTER NURSE; and CAPTAIN FNU HERLIN, all in their individual capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff's failure to comply with the Court's November 9, 2018 and June 24, 2019 Orders. Docs. 3, 9. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, doc. 1, for 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.[1]

         BACKGROUND

         On October 18, 2018, Plaintiff, proceeding pro se, filed a Complaint regarding events allegedly occurring in Toombs County, Georgia. Doc. 1. Plaintiff also filed a motion to proceed in forma pauperis. Doc. 2. The Court granted Plaintiff's motion. Doc. 3. Plaintiff filed a motion for continuance, doc. 4, and the Court granted his motion and allowed Plaintiff an additional 14 days to return his prisoner trust account statement and consent to collection of fees forms, or until December 28, 2018. Doc. 5. By this same Order, Plaintiff was advised that his failure to timely comply with the Court's Order would result in the dismissal of his cause of action. Id. at 1-2. This Order was returned to the Court as undeliverable to the address the Court had on file for Plaintiff. Doc. 6.

         Plaintiff then filed a motion/notice and stated he never received the requisite forms the Court attached to its Order and asked for additional forms. Doc. 8. The Court granted Plaintiff's motion, once again attached the requisite forms to this Order, and directed Plaintiff to return the attached forms within 30 days, or by July 24, 2019. Doc. 9 at 3-4. The Court advised Plaintiff his failure to respond to the Court's Order would result in the dismissal of his case for failure to prosecute and to follow this Court's Orders. Id. at 4. Plaintiff was also advised-once again-to advise the Court in writing of any change of address and that failure to do so would also result in the dismissal of his case. Id. at 3. The Clerk of Court mailed this Order and attachments to Plaintiff at his last known address. On July 5, 2019, that Order was returned to the Court with the notations “Return to Sender, ” “Refused, ” and “Unable to Forward.” Doc. 10. Plaintiff did not advise the Court of any change in his address. In addition, Plaintiff has not filed any pleading with the Court since January 16, 2019. Doc. 8.

         DISCUSSION

         The Court must now determine how to address Plaintiff's failure to comply with this Court's Orders. 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.

         I. Dismissal for Failure to Follow this Court's Orders and Failure to Prosecute

         A 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);[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 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)).

         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 § 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 Orders, failing to return the requisite forms, and not providing the Court with his current address, the Court cannot move forward with this case. See 28 U.S.C. §§ 1914, 1915. Moreover, Plaintiff was given ample notice of the consequences of his failure to follow the Court's Orders, and Plaintiff has not made any effort to do so or to otherwise prosecute this case. In fact, Plaintiff has made no filings with the Court since January 16, 2019. Thus, the Court should DISMISS without prejudice Plaintiff's Complaint, doc.1, for 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.

         II. Leave to Appeal in Forma Pauperis

         The 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 ...


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