Nicholas v. U.S. Department of Justice

• Court: District Court, S.D. Georgia
• Decided: April 8, 2025
• Docket: 5:25-cv-00014
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

DON JUNIOR NICHOLAS,

Petitioner, CIVIL ACTION NO.: 5:25-cv-14

v.

WARDEN MICHAEL BRECKON,

Respondent.

REPORT AND RECOMMENDATION Respondent filed a Motion to Dismiss, and I directed Petitioner Don Nicholas (“Nicholas”) to respond to the Motion to Dismiss on or before March 26, 2025. Docs. 5, 6. Nicholas has not responded to the Motion to Dismiss, and the time to do so has elapsed. As discussed below in more detail, I RECOMMEND the Court GRANT as unopposed Respondent’s Motion to Dismiss, DISMISS without prejudice Nicholas’s 28 U.S.C. § 2241 Petition, doc. 1, for failure to follow this Court’s Order, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Nicholas leave to appeal in forma pauperis. BACKGROUND On February 10, 2025, Nicholas brought his § 2241 Petition and states his time in immigration detention has been excessive. Doc. 1. After Nicholas paid the requisite filing fee, I directed service of Nicholas’s Petition. Doc. 2. Respondent filed this Motion to Dismiss, stating Nicholas’s claims should be dismissed because this Court lacks jurisdiction over Nicholas’s Petition and, even if this Court could consider a due process claim, such a claim would fail. Doc. 5. The Court ordered Nicholas to respond to the Motion to Dismiss within 14 days of the March 12, 2025 Order. Doc. 6. The Court advised Nicholas his failure to respond to the Motion

to Dismiss within 14 days would result in the dismissal of his Petition based on his failure to respond to an Order of the Court and the granting of the Motion to Dismiss as unopposed. Id. Nicholas’s response was due on or before March 26, 2025. There is nothing before the Court indicating this Order was returned to the Court or otherwise failed to reach Nicholas. Nicholas has not responded to the Motion to Dismiss or this Court’s Order, and the time to do so has elapsed. DISCUSSION The Court must now determine how to address Nicholas’s failure to comply with this Court’s Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Nicholas’s Petition and DENY Nicholas leave to appeal in forma pauperis.

I. Dismissal for Failure to Follow This Court’s Order A district court may dismiss a petitioner’s claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the court’s inherent authority to manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962);1 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

1 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. However, in this case, Nicholas was forewarned of the consequences of failing to respond to Respondent’s Motion to Dismiss. Doc. 6; see also Local R. 7.5 (“Failure to respond within the applicable time period shall indicate . . . there is no opposition to a motion.”). involuntary dismissal of a petitioner’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, 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 non-compliance could lead to dismissal).

Nicholas failed to follow this Court’s Order, despite having ample opportunity to do so and being forewarned of the consequences of his failure to do so. Doc. 6. Thus, the Court should GRANT as unopposed Respondent’s Motion to Dismiss and DISMISS without prejudice Nicholas’s § 2241 Petition. Docs. 1, 5. II. Leave to Appeal in Forma Pauperis The Court should also deny Nicholas leave to appeal in forma pauperis. Though Nicholas 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). Thus, a claim 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 Nicholas’s failure to follow this Court’s Order or respond to the Motion to Dismiss, 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 Nicholas in forma pauperis status on appeal. CONCLUSION Based on the foregoing, I RECOMMEND the Court GRANT as unopposed Respondent’s Motion to Dismiss, DISMISS without prejudice Nicholas’s 28 U.S.C. § 2241 Petition for failure to follow the Court’s Order, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Nicholas leave to appeal in forma pauperis. 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 herein. Objections not meeting the specificity requirement set out above will not be considered by the 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 REPORTED and RECOMMENDED, this 8th day of April, 2025.

BO _ UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA