IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION
EDDIE FRANK FLOYD, III,
Plaintiff, CIVIL ACTION NO.: 6:18-cv-7
v.
MR. TOOL, et al.,
Defendants.
ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter comes before the Court on Plaintiff’s failure to comply with the Court’s November 26, 2019 Order, doc. 16. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action. I further RECOMMEND the Court 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. BACKGROUND Plaintiff, proceeding in forma pauperis, filed this action against numerous Defendants, alleging violations of his constitutional rights. Docs. 1, 4. The Court, adopting the Report and Recommendation, dismissed Plaintiff’s Eighth Amendment and equal protection claims, dismissed Plaintiff’s claims against Defendants for monetary damages in their official capacities, and denied Plaintiff’s various requests for injunctive relief. Doc. 17. The Court allowed Plaintiff’s First Amendment claims of retaliation and interference with mail to remain pending; however, this Court noted that it could not “determine which, if any, of Plaintiff’s First Amendment claims are viable against which Defendants.” Doc. 16 at 9. Accordingly, on November 26, 2019, Plaintiff was directed “to file a Second Amended Complaint within 14 days . . . with regard to his First Amendment claims of retaliation and interference with his mail . . . .” Id. at 1. The Court also informed Plaintiff that “[f]ailure to timely file a Second Amended Complaint may result in dismissal of this case.” Id. at 10.
Almost 50 days have passed since this Court’s November 26, 2019 Order, and Plaintiff has failed to file a Second Amended Complaint or otherwise make any filings in this matter. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this Court’s November 26, 2019 Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action. I also RECOMMEND the Court 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. I. Dismissal for Failure to Follow Court’s Order A district court may dismiss a plaintiff’s claims for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and 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 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 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] [w]illful disobedience or neglect of any order of the Court.”). 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)). 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 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). In 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. Plaintiff has failed to diligently prosecute his claims, as he failed to file a Second Amended Complaint, as this Court directed. Doc. 16. 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, where plaintiff did not respond to court order to supply defendant’s current address for purpose of service); Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal). As an additional ground for dismissal, the Court notes that Plaintiff’s remaining claims of First Amendment retaliation and interference with his mail are due to be stricken because Plaintiff did not comply with the Court’s direction that he file a more definite statement with respect to these claims. See Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996)
(noting district court’s “inherent authority” to require party to file more definite statement); see also Fed. R Civ. P. 12(e) (“If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.”). For these reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action, and I also RECOMMEND the Court 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 is appropriate to address this issue in the Court’s order of
dismissal. See Fed. R. App. P. 24(a)(3) (providing trial court may certify that appeal is not taken in good faith “before or after the notice of appeal is filed”).
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION
EDDIE FRANK FLOYD, III,
Plaintiff, CIVIL ACTION NO.: 6:18-cv-7
v.
MR. TOOL, et al.,
Defendants.
ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter comes before the Court on Plaintiff’s failure to comply with the Court’s November 26, 2019 Order, doc. 16. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action. I further RECOMMEND the Court 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. BACKGROUND Plaintiff, proceeding in forma pauperis, filed this action against numerous Defendants, alleging violations of his constitutional rights. Docs. 1, 4. The Court, adopting the Report and Recommendation, dismissed Plaintiff’s Eighth Amendment and equal protection claims, dismissed Plaintiff’s claims against Defendants for monetary damages in their official capacities, and denied Plaintiff’s various requests for injunctive relief. Doc. 17. The Court allowed Plaintiff’s First Amendment claims of retaliation and interference with mail to remain pending; however, this Court noted that it could not “determine which, if any, of Plaintiff’s First Amendment claims are viable against which Defendants.” Doc. 16 at 9. Accordingly, on November 26, 2019, Plaintiff was directed “to file a Second Amended Complaint within 14 days . . . with regard to his First Amendment claims of retaliation and interference with his mail . . . .” Id. at 1. The Court also informed Plaintiff that “[f]ailure to timely file a Second Amended Complaint may result in dismissal of this case.” Id. at 10.
Almost 50 days have passed since this Court’s November 26, 2019 Order, and Plaintiff has failed to file a Second Amended Complaint or otherwise make any filings in this matter. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this Court’s November 26, 2019 Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action. I also RECOMMEND the Court 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. I. Dismissal for Failure to Follow Court’s Order A district court may dismiss a plaintiff’s claims for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and 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 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 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] [w]illful disobedience or neglect of any order of the Court.”). 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)). 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 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). In 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. Plaintiff has failed to diligently prosecute his claims, as he failed to file a Second Amended Complaint, as this Court directed. Doc. 16. 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, where plaintiff did not respond to court order to supply defendant’s current address for purpose of service); Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal). As an additional ground for dismissal, the Court notes that Plaintiff’s remaining claims of First Amendment retaliation and interference with his mail are due to be stricken because Plaintiff did not comply with the Court’s direction that he file a more definite statement with respect to these claims. See Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996)
(noting district court’s “inherent authority” to require party to file more definite statement); see also Fed. R Civ. P. 12(e) (“If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.”). For these reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action, and I also RECOMMEND the Court 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 is appropriate to address this issue in the Court’s order of
dismissal. See Fed. R. App. P. 24(a)(3) (providing trial court may certify that 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, 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 “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); 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 directive, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal. CONCLUSION For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice this action 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 proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within 14 days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address any contention raised in the pleading must also be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be served upon all other parties to the action. The filing of objections is not a proper vehicle through which to make new allegations or present additional evidence. Furthermore, it is not necessary for a party to repeat legal arguments in objections. The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App’x 542, 545 (11th Cir. 2015). Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report to which objection are made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge’s report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon Plaintiff. SO ORDERED and REPORTED and RECOMMENDED, this 15th day of January, 2020.
Bat BENJ ‘AMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA