IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION
GREGORY BERNARD BOLDEN, II,
Plaintiff, CIVIL ACTION NO.: 6:24-cv-70
v.
WARDEN JACOB BEASLEY, ASSISTANT WARDEN CARVER, SERGEANT DASSIOUS, OFFICER LUPO, and DEPUTY WARDEN FOLKS,
Defendants.
ORDER AND REPORT AND RECOMMENDATION Plaintiff has failed to comply with this Court’s October 14, 2025 Order. Doc. 40. As discussed in further detail below, I RECOMMEND the Court GRANT as unopposed Defendants’ Motion to Dismiss, doc. 30, DISMISS without prejudice Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s Order and failure to prosecute, 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 I DENY as moot Defendants’ Motion to Stay. Doc. 31.
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). A magistrate judge’s report and recommendation provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating a party has notice of a district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting report and recommendation served as notice claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff her suit is due to be dismissed. As indicated below, Plaintiff will have the opportunity to present her objections to this finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV- 3562, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining magistrate judge’s report and BACKGROUND Plaintiff, proceeding pro se, submitted a Complaint, alleging that Defendants violated his constitutional rights. Doc. 1. The Court ordered service of Plaintiff’s Complaint. Doc. 17. In lieu of an Answer, Defendants filed a Motion to Dismiss on September 22, 2025. Doc. 30.
Plaintiff’s response to the Motion to Dismiss was due to be filed on or before October 6, 2025, but Plaintiff did not file his response. Thus, the Court issued an Order on October 14, 2025, directing Plaintiff to show cause why this case should not be dismissed by either responding to the Motion to Dismiss or by informing the Court he does not oppose the Motion on or before October 28, 2025. Doc. 40. Defendants responded to the Court’s Order this same day and notified the Court that they had served Plaintiff with their Motion to Dismiss using the address Plaintiff had recently provided. Doc. 41. Plaintiff has not responded to the Motion to Dismiss or this Court’s Order, and the times to do so have elapsed. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order and failure to prosecute. 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 Order and to Prosecute A district court may dismiss a plaintiff’s claims sua sponte based on either Federal Rule of Civil Procedure 41(b) or the court’s inherent authority to manage its docket. Link v. Wabash
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond). 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 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
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 Order could result in dismissal of this action. Doc. 40. 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.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION
GREGORY BERNARD BOLDEN, II,
Plaintiff, CIVIL ACTION NO.: 6:24-cv-70
v.
WARDEN JACOB BEASLEY, ASSISTANT WARDEN CARVER, SERGEANT DASSIOUS, OFFICER LUPO, and DEPUTY WARDEN FOLKS,
Defendants.
ORDER AND REPORT AND RECOMMENDATION Plaintiff has failed to comply with this Court’s October 14, 2025 Order. Doc. 40. As discussed in further detail below, I RECOMMEND the Court GRANT as unopposed Defendants’ Motion to Dismiss, doc. 30, DISMISS without prejudice Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s Order and failure to prosecute, 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 I DENY as moot Defendants’ Motion to Stay. Doc. 31.
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). A magistrate judge’s report and recommendation provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating a party has notice of a district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting report and recommendation served as notice claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff her suit is due to be dismissed. As indicated below, Plaintiff will have the opportunity to present her objections to this finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV- 3562, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining magistrate judge’s report and BACKGROUND Plaintiff, proceeding pro se, submitted a Complaint, alleging that Defendants violated his constitutional rights. Doc. 1. The Court ordered service of Plaintiff’s Complaint. Doc. 17. In lieu of an Answer, Defendants filed a Motion to Dismiss on September 22, 2025. Doc. 30.
Plaintiff’s response to the Motion to Dismiss was due to be filed on or before October 6, 2025, but Plaintiff did not file his response. Thus, the Court issued an Order on October 14, 2025, directing Plaintiff to show cause why this case should not be dismissed by either responding to the Motion to Dismiss or by informing the Court he does not oppose the Motion on or before October 28, 2025. Doc. 40. Defendants responded to the Court’s Order this same day and notified the Court that they had served Plaintiff with their Motion to Dismiss using the address Plaintiff had recently provided. Doc. 41. Plaintiff has not responded to the Motion to Dismiss or this Court’s Order, and the times to do so have elapsed. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order and failure to prosecute. 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 Order and to Prosecute A district court may dismiss a plaintiff’s claims sua sponte based on either Federal Rule of Civil Procedure 41(b) or the court’s inherent authority to manage its docket. Link v. Wabash
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond). 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 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
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 Order could result in dismissal of this action. Doc. 40. 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 comply with the Court’s Order or respond to the Motion to Dismiss, the Court cannot move forward with this case. Moreover, Plaintiff was given notice of
the consequences of his failure to follow the Court’s Order, and Plaintiff has not done so. Thus, the Court should DISMISS without prejudice Plaintiff’s Complaint for failure to follow this Court’s Order 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) (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 Order and failure to prosecute, 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 GRANT as unopposed Defendants’ Motion to Dismiss, DISMISS without prejudice Plaintiff’s Complaint for failure to follow this Court’s Order 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. I DENY as moot Defendants’ Motion to Stay. Doc. 31. Any objections to this Report and Recommendation shall be filed within 14 days of today’s date. Objections shall be specific and in writing. Any objection that the Magistrate Judge failed to address a contention raised in the Complaint must be included. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge’s factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185, 1192-93 (11th Cir. 2020). To be clear, a party waives all rights to challenge the Magistrate Judge’s factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan, 977 F.3d at 1192-93; 11th Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action. 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, proposed findings, or recommendation to which objection is 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. SO ORDERED and REPORTED and RECOMMENDED, this 17th day of November, 2025. Bo BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA