IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION
DENNIS KENNEDY,
Plaintiff, CIVIL ACTION NO.: 5:18-cv-27
v.
WARDEN T. JOHNS; ROBYN CROSS; E. LAWSON; and OFFICER FNU BRAZEALE,
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 Order, doc.11, his failure to update his address, and his failure to prosecute this action. For the following reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint without prejudice for failure to follow the Court’s directives and failure to prosecute.1 I further RECOMMEND that 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.
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 quotation 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 that 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 that report and recommendation served as notice that claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his 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 that magistrate judge’s report and recommendation constituted adequate notice and plaintiff’s opportunity to file objections provided a reasonable opportunity to respond). BACKGROUND On March 27, 2018, Plaintiff filed his Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Complaint contesting certain conditions of his confinement at D. Ray James Correctional Facility in Folkston, Georgia. Doc. 1. Yet before
Plaintiff’s Complaint had been filed, he was moved to Stewart Detention Center in Lumpkin, Georgia. See Dkt. entry dated Mar. 27, 2018. Soon thereafter, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis and ordered Plaintiff to “immediately inform this Court in writing of any change of address. Failure to do so will result in dismissal of this case . . . .” Doc. 4 at 3. Plaintiff returned the consent to collection of cees and prisoner trust fund account statement forms indicating his receipt of the Court’s Order. Docs. 5, 6. On January 15, 2020, I issued a Report and Recommendation and service Order regarding Plaintiff’s pending Complaint. Doc. 8. On January 27, 2020, the Court’s Order was returned as undeliverable because Plaintiff was no longer at Stewart Detention Center. Doc. 10. The Court ordered Plaintiff to show cause, within 14 days, why his Complaint should not be dismissed. Doc. 11.
The deadline to respond has passed, and Plaintiff has failed to respond with cause as to why his Complaint should not be dismissed. In fact, the Court’s show cause Order was also returned as undeliverable with the notation: “Not at this Facility.” Doc. 14. DISCUSSION 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);2 Coleman v. St. Lucie Cty.
2 In Wabash, the Court held that 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. However, in this case, Plaintiff was warned of any failure to respond to this Court’s Orders and failure to prosecute. Doc. 4 at 3, 4; Doc. 9 at 15; Doc. 11 at 2. 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)). 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
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION
DENNIS KENNEDY,
Plaintiff, CIVIL ACTION NO.: 5:18-cv-27
v.
WARDEN T. JOHNS; ROBYN CROSS; E. LAWSON; and OFFICER FNU BRAZEALE,
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 Order, doc.11, his failure to update his address, and his failure to prosecute this action. For the following reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint without prejudice for failure to follow the Court’s directives and failure to prosecute.1 I further RECOMMEND that 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.
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 quotation 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 that 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 that report and recommendation served as notice that claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his 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 that magistrate judge’s report and recommendation constituted adequate notice and plaintiff’s opportunity to file objections provided a reasonable opportunity to respond). BACKGROUND On March 27, 2018, Plaintiff filed his Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Complaint contesting certain conditions of his confinement at D. Ray James Correctional Facility in Folkston, Georgia. Doc. 1. Yet before
Plaintiff’s Complaint had been filed, he was moved to Stewart Detention Center in Lumpkin, Georgia. See Dkt. entry dated Mar. 27, 2018. Soon thereafter, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis and ordered Plaintiff to “immediately inform this Court in writing of any change of address. Failure to do so will result in dismissal of this case . . . .” Doc. 4 at 3. Plaintiff returned the consent to collection of cees and prisoner trust fund account statement forms indicating his receipt of the Court’s Order. Docs. 5, 6. On January 15, 2020, I issued a Report and Recommendation and service Order regarding Plaintiff’s pending Complaint. Doc. 8. On January 27, 2020, the Court’s Order was returned as undeliverable because Plaintiff was no longer at Stewart Detention Center. Doc. 10. The Court ordered Plaintiff to show cause, within 14 days, why his Complaint should not be dismissed. Doc. 11.
The deadline to respond has passed, and Plaintiff has failed to respond with cause as to why his Complaint should not be dismissed. In fact, the Court’s show cause Order was also returned as undeliverable with the notation: “Not at this Facility.” Doc. 14. DISCUSSION 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);2 Coleman v. St. Lucie Cty.
2 In Wabash, the Court held that 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. However, in this case, Plaintiff was warned of any failure to respond to this Court’s Orders and failure to prosecute. Doc. 4 at 3, 4; Doc. 9 at 15; Doc. 11 at 2. 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)). 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. 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). Despite the Court’s directions, Plaintiff failed to show cause as to why his Complaint should not be dismissed and did not provide this Court with an updated address. This Court has no means by which it can communicate with Plaintiff and is unable to move forward with this case. Plaintiff has failed to diligently prosecute his claims. For these reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint, doc. 1. 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 directives 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 DISMISS without prejudice Plaintiff’s Complaint, doc. 1, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I also 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 Complaint 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. 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, 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. The Court DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon the parties. SO ORDERED and REPORTED and RECOMMENDED, this 14th day of February, 2020.
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA