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Acree v. Allen

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

December 3, 2019

WILLIAM ACREE, Plaintiff,
v.
WARDEN MARTY ALLEN, et al., 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 Orders of June 11, 2018 and November 14, 2019. Docs. 5, 11. 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 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

         Plaintiff, proceeding pro se, filed a 42 U.S.C. § 1983 Complaint and a motion for leave to proceed in forma pauperis. Docs. 1, 2. In its Order granting Plaintiff in forma pauperis status, the Court advised Plaintiff he was to immediately inform the Court in writing of any change in his address and warned Plaintiff his failure to do so would result in the dismissal of his case. Doc. 5 at 3. Plaintiff filed two notices of change of address, and his most recent notice indicated his mailing address was at Georgia State Prison in Reidsville, Georgia. Doc. 10. However, Plaintiff also indicated his sentence was to be completed on or around March 1, 2019, doc. 1 at 1. In addition, in another case Plaintiff filed in this Court, the last mailings the Court sent to Plaintiff at Georgia State Prison, his last known address, were returned to the Court marked “Not at GSP” and “Return to Sender.” Doc. 11 at 1 (citing Acree v. Hunt, 6:17-cv-106 (S.D. Ga. Aug. 15, 2019 & Sept. 10, 2019), ECF Nos. 40, 43)).

         In this case, the Court directed Plaintiff to update his address and to show cause why his case should not be dismissed, as the Court has no means by which to communicate with Plaintiff. Id. at 2. The Court warned Plaintiff his failure to respond to that Order or to otherwise show cause would result in the dismissal of his cause of action, without prejudice, for failure to follow this Court's Order. Id. Plaintiff has failed to notify the Court of his updated mailing address or to otherwise respond to the Court's November 14, 2019 Order. In fact, the Court's Order was returned with the notations “Not at GSP, Return to Sender, Not at this Address, and Unable to Forward.” Doc. 12.

         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

         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 failed to follow this Court's Orders or otherwise notify the Court, in writing, of any change in his address, the Court has no means of communicating with Plaintiff and cannot move forward with this case. See 28 U.S.C. § 1915. Moreover, Plaintiff was given 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. Plaintiff has not filed anything in this case in nearly a year's time.

         Thus, the Court should DISMISS without prejudice Plaintiff's Complaint, doc.1, for failure to follow this Court's Orders and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         II. Leave to Appeal i ...


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