TATUM v. SUPERIOR COURT

Filing 17

ORDER ADOPTING 14 Report and Recommendations; DENYING as moot 6 Motion for Leave to Proceed in forma pauperis; and DENYING as moot 16 Motion to Appoint Counsel. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/21/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JASON M. TATUM,
Plaintiff,
v.

SUPERIOR COURT,
Defendant.

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) CIVIL ACTION NO. 5:17-CV-112 (MTT)
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ORDER

United States Magistrate Judge Charles H. Weigle recommends that Plaintiff
Jason M. Tatum’s complaint be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to
comply with the Court’s order. Doc. 14 at 2-3. Tatum has objected to the
recommendation and has also moved for an extension of time to file a recast complaint
and for counsel to be appointed. Doc. 15. Pursuant to 28 U.S.C. § 636(b)(1), the Court
has performed a de novo review of the portions of the recommendation to which Tatum
objects and, for the reasons stated herein, ADOPTS that recommendation.
Additionally, Tatum’s motion for extension of time to file a recast complaint is DENIED,
and his motions to proceed in forma pauperis (Doc. 6) and to appoint counsel (Doc. 16)
are DENIED as moot.
Tatum moved for leave to proceed IFP on May 17, 2017. Doc. 6. Accordingly,
the Magistrate Judge attempted to screen Tatum’s complaint pursuant to 28 U.S.C. §
1915(a) to ensure he stated a claim for relief. See Doc. 7. However, from Tatum’s
complaint, the Magistrate Judge could not determine if Tatum wished to pursue a civil

rights claim under 28 U.S.C. § 1983 or if he intended to file a petition for writ of habeas
corpus under 28 U.S.C. § 2241. Id. at 1-2. Accordingly, the Magistrate Judge ordered
Tatum to file a recast complaint or a habeas corpus petition and to fill out the applicable
forms, which the Magistrate Judge instructed the Clerk to send to Tatum. Id. Tatum
was then granted two extensions of time to recast his complaint. Docs. 8; 10. On
January 2, 2018, Tatum was ordered to show cause why his complaint should not be
dismissed for failure to comply with the Court’s order. Doc. 12. In response, rather than
file a recast compliant or a habeas petition, Tatum again moved for an extension of
time, stating he could not comply with the order due to the “disability, hardship and
nuisance of incarceration.” Doc. 13 at 2. The Magistrate Judge denied that motion and
now recommends that Tatum’s complaint be dismissed for failure to comply with the
Court’s orders. Doc. 14 at 2.
In his objection, Tatum again argues that he cannot comply with the Court’s
orders because he is incarcerated and, specifically, because he does not have access
to “stationary provisions.” Doc. 18 at 1. The Court notes this has not prevented Tatum
from filing three motions for extension of time. Docs. 8; 10; 13. Moreover, Tatum states
that he is “now ready to file recast complaint” but, instead of filing his recast complaint,
requests an additional six months to do so. Doc. 15 at 3. This motion for extension of
time is DENIED. The Court has reviewed both the recommendation and Tatum’s
objection, and the Court adopts the findings, conclusions, and recommendations of the
Magistrate Judge.
Accordingly, the recommendation (Doc. 14) is ADOPTED and made the order of
this court, and Tatum’s complaint is DISMISSED without prejudice for failure to

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comply with the court’s order.1 Fed. R. Civ. P. 41(b); Brown v. Tallahassee Police
Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (“The court may dismiss an action sua
sponte under Rule 41(b) for failure to prosecute or failure to obey a court order.”) (citing
Fed. R. Civ. P. 41(b) and Lopez v. Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544
(5th Cir. 1978)). Tatum’s motion for extension of time, stated in his objection, is
DENIED, and, moreover, his motions to proceed IFP (Doc. 6) and for appointment of
counsel (Doc. 16) are DENIED as moot.2
SO ORDERED, this 21st day of February, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

1

From the record, the Court cannot determine if the applicable statute of limitations has run or is about to
run on Tatum’s claims. “[W]here a dismissal without prejudice has the effect of precluding the plaintiff
from re-filing his claim due to the running of the statute of limitations, it is tantamount to a dismissal with
prejudice.” Stephenson v. Doe, 554 F. App’x 835, 837 (11th Cir. 2014) (citing Justice v. United States, 6
F.3d 1474, 1482 n.15 (11th Cir. 1993)). But even if dismissal here were effectively with prejudice, that
would be appropriate because, as established herein, there is a “a clear record of delay or willful
misconduct” and “lesser sanctions are inadequate to correct such conduct.” Stephenson, 554 F. App’x at
837 (citations omitted); see also Hickman v. Hickman, 563 F. App’x 742 (11th Cir. 2014) (upholding sua
sponte dismissal with prejudice for failure to respond to the district court’s order); Eades v. Ala. Dep’t of
Human Res., 298 F. App’x 862 (11th Cir. 2008) (same).
2

Notwithstanding dismissal of Tatum’s complaint, his motion for appointment of counsel is due to be
denied because he has not established that the issues in this case are factually nor legally complex. See
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (“Appointment of counsel in a civil case is not a
constitutional right.”).

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