IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION
LOVELL DAWSON,
Plaintiff, CIVIL ACTION NO.: 2:23-cv-98
v.
GLYNN COUNTY DETENTION CENTER, DR. DILLMAN, and GEORGE FERRA,
Defendants.
O RDE R Plaintiff has failed to comply with this Court’s August 21, 2023 and July 12, 2024 Orders and Local Rules. Docs. 4, 19; Local R. 11.1. As discussed in further detail below, I DISMISS without prejudice Plaintiff’s Complaint, as amended, docs. 1, 15, 16, for failure to follow this Court’s Orders and Local Rules, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis.1 BACKGROUND On August 16, 2023, Plaintiff, proceeding pro se, filed a Complaint against Defendants, alleging they violated his constitutional rights. Doc. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. Doc. 2. The Court granted Plaintiff leave to proceed in forma pauperis on August 21, 2023, and informed Plaintiff he was to immediately inform the Court in
1 A “district court can only dismiss an action on its own motion as long as the procedure employed is fair . . . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (citations and internal quotations marks omitted). As noted elsewhere, the Court forewarned Plaintiff his failure to respond to the Court’s Orders would result in the dismissal of his case. Docs. 4, 19. In addition, Plaintiff has the opportunity to respond to this Order. writing of any change of address. Doc. 4 at 3 (citing Local R. 11.1). The Court denied as premature two of Plaintiff’s motions on June 24, 2024. Doc. 17. That Order was returned as undeliverable because Plaintiff had been released from the Glynn County Detention Center. Doc. 18 at 1. Thus, the Court issued an Order on July 12, 2024, directing Plaintiff to show cause
why his case should not be dismissed by advising the Court of his new address or his address had not changed. Doc. 19. The Court again advised Plaintiff his case would be dismissed if he failed to respond to the Court’s Order. Id. This mailing was also returned as undeliverable because Plaintiff is no longer at the Glynn County Detention Center, which is Plaintiff’s last known address. Doc. 20 at 1. In addition, this Court’s Local Rules require pro se litigants to update the Court of any change in address, which Plaintiff has failed to do. Local R. 11.1. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this Court’s Orders and Local Rules. For the reasons set forth below, the Court DISMISSES without prejudice Plaintiff’s Complaint and DENIES Plaintiff leave to appeal in forma
pauperis. I. Dismissal for Failure to Follow This Court’s Orders and Local Rules A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal Rule of Civil Procedure 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 Cnty. Jail, 433 F. App’x 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
2 In Wabash, the Court held a trial court may dismiss an action for failure to prosecute “even without affording notice of its intention to do so.” 370 U.S. at 633. Nonetheless, in the case at hand, the Court advised Plaintiff his failure to comply with the Court’s Orders would result in dismissal of this action. Docs. 4, 19. 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 F. App’x 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 F. App’x 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)). It is true dismissal with prejudice for failure to prosecute is a “sanction . . . to be utilized only in extreme situations” and requires a court to “(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 Cnty. Bd. of Educ., 170 F. App’x 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 F. App’x 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 F. App’x at 619; see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x 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 F. App’x 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 F. App’x 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
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION
LOVELL DAWSON,
Plaintiff, CIVIL ACTION NO.: 2:23-cv-98
v.
GLYNN COUNTY DETENTION CENTER, DR. DILLMAN, and GEORGE FERRA,
Defendants.
O RDE R Plaintiff has failed to comply with this Court’s August 21, 2023 and July 12, 2024 Orders and Local Rules. Docs. 4, 19; Local R. 11.1. As discussed in further detail below, I DISMISS without prejudice Plaintiff’s Complaint, as amended, docs. 1, 15, 16, for failure to follow this Court’s Orders and Local Rules, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis.1 BACKGROUND On August 16, 2023, Plaintiff, proceeding pro se, filed a Complaint against Defendants, alleging they violated his constitutional rights. Doc. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. Doc. 2. The Court granted Plaintiff leave to proceed in forma pauperis on August 21, 2023, and informed Plaintiff he was to immediately inform the Court in
1 A “district court can only dismiss an action on its own motion as long as the procedure employed is fair . . . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (citations and internal quotations marks omitted). As noted elsewhere, the Court forewarned Plaintiff his failure to respond to the Court’s Orders would result in the dismissal of his case. Docs. 4, 19. In addition, Plaintiff has the opportunity to respond to this Order. writing of any change of address. Doc. 4 at 3 (citing Local R. 11.1). The Court denied as premature two of Plaintiff’s motions on June 24, 2024. Doc. 17. That Order was returned as undeliverable because Plaintiff had been released from the Glynn County Detention Center. Doc. 18 at 1. Thus, the Court issued an Order on July 12, 2024, directing Plaintiff to show cause
why his case should not be dismissed by advising the Court of his new address or his address had not changed. Doc. 19. The Court again advised Plaintiff his case would be dismissed if he failed to respond to the Court’s Order. Id. This mailing was also returned as undeliverable because Plaintiff is no longer at the Glynn County Detention Center, which is Plaintiff’s last known address. Doc. 20 at 1. In addition, this Court’s Local Rules require pro se litigants to update the Court of any change in address, which Plaintiff has failed to do. Local R. 11.1. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this Court’s Orders and Local Rules. For the reasons set forth below, the Court DISMISSES without prejudice Plaintiff’s Complaint and DENIES Plaintiff leave to appeal in forma
pauperis. I. Dismissal for Failure to Follow This Court’s Orders and Local Rules A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal Rule of Civil Procedure 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 Cnty. Jail, 433 F. App’x 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
2 In Wabash, the Court held a trial court may dismiss an action for failure to prosecute “even without affording notice of its intention to do so.” 370 U.S. at 633. Nonetheless, in the case at hand, the Court advised Plaintiff his failure to comply with the Court’s Orders would result in dismissal of this action. Docs. 4, 19. 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 F. App’x 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 F. App’x 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)). It is true dismissal with prejudice for failure to prosecute is a “sanction . . . to be utilized only in extreme situations” and requires a court to “(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 Cnty. Bd. of Educ., 170 F. App’x 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 F. App’x 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 F. App’x at 619; see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x 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 F. App’x 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 F. App’x 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
F. App’x 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 non-compliance could lead to dismissal). With Plaintiff having failed to follow this Court’s Orders and Local Rules, the Court cannot move forward with this case. Moreover, Plaintiff was given notice of the consequences of his failure to follow the Court’s Orders and Local Rules, and Plaintiff has not done so. Thus, the Court DISMISSES without prejudice Plaintiff’s Complaint, as amended, for failure to follow this Court’s Orders and Local Rules and DIRECTS the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. II. Leave to Appeal in Forma Pauperis
The Court also denies Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is appropriate to address that issue in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (noting trial court may certify appeal is not taken in good faith “before or after the notice of appeal is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is filed, 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 “without arguable merit either in law or fact.” Moore v. Bargstedt, 203 F. App’x 321, 323 (11th Cir. 2006) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1—2 (S.D. Ga. Feb. 9, 2009). Based on the above analysis of Plaintiff’s failure to follow this Court’s Orders, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court DENIES Plaintiff in forma pauperis status on appeal. CONCLUSION For the above-stated reasons, I DISMISS without prejudice Plaintiff's Complaint, as amended, for failure to follow this Court’s Orders and Local Rules, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis. SO ORDERED, this 31st day of July, 2024.
Bo 1 BENJAMIN W.CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA