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 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.
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)).
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.”
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.
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).
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.
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.
Leave to Appeal i ...