Murray v. Wilkes County Board of Commissioners et al

Filing 8

REPORT AND RECOMMENDATIONS re 1 Complaint, that the case be dismissed without prejudice and that this case be closed. Objections to R&R due by 8/17/2009. Signed by Magistrate Judge W. Leon Barfield on 07/31/09. (thb)

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FILED CT r, eLRT

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA09 JUL 31 PM 1:39 AUGUSTA DIVISION ROBERT LEWIS MURRAY, Plaintiff,
V.

CV 108-164

WILKES COUNTY BOARD OF COMMISSIONERS, et al., Defendants

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, an inmate detained at the Smith Correctional Institution, located in Glennville, Georgia when this action commenced, filed the above-captioned civil rights case
prose and requested permission to proceed in forma pauperis ("IFP"). On June 30, 2009,

the Court directed Plaintiff to return his Prisoner Trust Fund Account Statement and Consent to Collection of Fees form within thirty (30) days, cautioning him that failure to respond could result in the dismissal of this case. (Doc. no. 6). This time period has expired, yet Plaintiff has failed to provide a properly completed Prisoner Trust Fund Account Statement or a signed Consent to Collection of Fees form. Plaintiff cannot proceed IFP unless he submits the requisite Trust Fund Account Statement and consents to the collection of the entire $350.Oo filing fee ininstallments. Wilson v. Sargent,313F.3d 1315, 13 19, 1321 (llth Cir. 2002) (per curiam) (citing 28 U.S.C. § 1915).

Moreover, Plaintiff's service copy of the Court's Order was returned and marked "Undeliverable" and indicated that he had been released. ( doc. no. 7). Thus, in addition to failing to comply with the Court's instructions, Plaintiff has failed to notify the Court of a change of address. Plaintiffs failure to provide the Court with an address where he can be reached has the effect of saddling the Court with a stagnant case. The Eleventh Circuit has stated that "[a] district court has inherent authority to manage its own docket 'so as to achieve the orderly and expeditious disposition of cases.'" Eguity Lifestyle Props. Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,1240 (1 lth Cir. 2009) (quoting Chambers v. Nasco. Inc., 501 U. S. 32,43 (1991)). This authority includes the power to dismiss a case for failure to prosecute or failure to comply with a court order. jēj, (citing Fed. R. Civ. P. 41(b)); see also I-Ivlerv. Revnolds Metal Co., 434 F.2d 1064, 1065 (5th Cir. 1970)' ("It is well settled that a district court has inherent power to dismiss a case for failure to prosecute.. . ."). Moreover, the Local Rules of the Southern District of Georgia dictate that an "assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice... . [for] failure to prosecute a civil action with reasonable promptness." Loc. R. 41.1(c). The test for determining the appropriateness of dismissal is whether there is "a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535(11 th Cir. 1985). Here, Plaintiff s failure to comply with the Court's Order, amounts not only to a failure to prosecute, but also an abandonment

'In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (1lth Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 2

of his case. This is precisely the type of neglect contemplated by the Local Rules. Furthermore, because Plaintiff sought permission to proceed in forma pauperis, the Court finds that the imposition of monetary sanctions is not a feasible sanction. However, the Court recognizes that Plaintiff is proceedingpro se, and courts have voiced a dislike for the harshness of dismissing a pro se case with prejudice prior to an adjudication on the merits.' See. e.g., Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Dickson v. Ga. State Bd. of Pardons & Paroles, No. 1: 06-CV- 13 1 O-JTC, 2007 WL 2904168, at *6 (N.D. Ga. Oct. 3, 2007). Thus, the Court is not persuaded that it would be appropriate to dismiss the instant action with prejudice. The Court is not permanently barring Plaintiff from bringing a meritorious claim. It is simply recommending dismissing the case without prejudice until such time as Plaintiff is willing to file his case and pursue it. For the reasons set forth herein, the Court REPORTS and RECOMMENDS that this case be DISMISSED without prejudice and that this case be CLOSED. SO REPORTED and RECOMMENDED thj , Jday of July, 2009, at Augusta, Georgia. W. LEON UNITED STATES MAGWFRATE JUDGE

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2Unless the Court specifies otherwise, a dismissal for failure to prosecute operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b).