Walker v. United States Of America

Filing 12

ORDER dismisses this action without prejudice. Further the Court DENIES Petitioner a Certificate of Appealability and DENIES Petitioner leave to appeal in forma pauperis. The Clerk of Court is directed to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 10/7/2015. (csr)

n the Entteb otato flitrftt Court
for the Oautbem Maria dt georgia
3runtoitk 30ibigion
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JASON CHRISTOPHER WALKER,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-013

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V.

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UNITED STATES OF AMERICA; SAMUEL *
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S. OLENS; and HOMER BRYSON,
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Respondent.
ORDER

As detailed below, Petitioner has failed to follow this
Court's directive to update the Court on his current mailing
address. Therefore, the Court has no means to communicate with
Plaintiff and cannot effectively administer this case.
Consequently, the Court DISMISSES this action without prejudice,
DENIES Petitioner leave to appeal in forma pauperis, and DENIES

him a certificate of appealability.
BACKGROUND

Petitioner filed an action under

28 U.S.C. § 2254

contesting the legality of his confinement. Dkt. No. 1. On
February

17, 2015,

Petitioner moved for leave of Court to

proceed in the present case

in forma pauperis.

Dkt. No. 3.

Petitioner's Motion was granted by Order dated May 13,
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2015,

and

the Clerk was directed to serve the Petition on the Respondents.
Dkt. No. 4. Additionally, Petitioner was informed by the
Magistrate Judge's May 13, 2015 Order of his obligation to
inform the Court, in writing, of any change of address and that
his failure to do so would result in the dismissal of his cause
of action. Dkt. No. 4, p. 3.
Respondent Bryson filed his answer response to the Petition
on July 10, 2015. Dkt. No. 5. On this same date, Respondent
Bryson filed a Motion to Dismiss, and Respondent Olens filed a
Motion to Dismiss as an Improper Party Respondent. Dkt.
Nos. 6, 7. On August 25, 2015, the Magistrate Judge issued an
Order directing Petitioner to file any objections to
Respondents' Motions to Dismiss within twenty-one days. Dkt.
No. 8. The Court warned Petitioner that if he did not respond
to the Motions to Dismiss, the Court would presume that he did
not oppose dismissal. Id.
The Magistrate Judge's May 13, 2015 Order was returned to
the Court and marked "Return to Sender" on August 27, 2015.
Dkt. No. 9. On August 28, 2015, Respondent Bryson filed a
Notice to the Court advising that service copies to Petitioner
were returned in the mail to Respondent.' (Dkt. No. 10.)
Additionally, the Magistrate Judge's August 25, 2015 Order was
1

Additionally, Respondent Bryson submits that the Bureau of Prisons
website indicates Petitioner was released from custody on June 17,
2015. Dkt. No 10, p. 2.
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returned to the Court as undeliverable on September 8, 2015.
(Dkt. No. 11.)
Given Petitioner's failure to provide the Court with any
other mailing address and the return of several previous
mailings sent to Petitioner's attention to the address listed
upon the docket and record of this case, the Court has been
unable to communicate effectively with Petitioner regarding the
progress of these proceedings.
DISCUSSION
I. Dismissal For Failure to Prosecute and Follow This
Court's Orders

A district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil Procedure 41(b)
("Rule 41(b)") or the court's inherent authority to manage its
docket. Link v. Wabash Railroad Company, 370 U.S. 626 (1962)
Coleman

V.

;2

St. Lucie Cty. 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
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. Nonetheless, in the case at
hand, the Court advised Petitioner that his failure to notify the
Court of his change of address would result in dismissal of this
action. Dkt. no 4, p. 3.
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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.
Tallahasse 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 that 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)
By contrast, dismissal without prejudice for failure to
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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 authority to dismiss cases
with caution, dismissal is appropriate in the case at hand. 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). Without a proper address for Petitioner,
the Court has no means to adjudicate the merits of his claims.
Moreover, he was given ample notice of his obligation to inform
this Court of any change of address, and he failed to do so.
Additionally, no lesser sanctions will suffice to remedy
Petitioner's clear record of delay.
Due to Petitioner's failure to follow the instructions of
the Court, his Petition is DISMISSED, without prejudice.
II. Leave to Appeal In Forma Pauperis and Certificate of
Appealability

The Court should also deny Petitioner leave to appeal in
forma pauperis, and he should be denied a Certificate of
Appealability ("COA"). Though Petitioner has, of course, not
yet filed a notice of appeal, it is proper to address these
issues in the Court's order of dismissal. Pursuant to Rule 11 of

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the Rules Governing Section 2254 Cases, "the district court must
issue or deny a certificate of appealability when it issues a
final order adverse to the applicant." (emphasis supplied); see
also, FED. R. APP. P. 24(a) (3) (trial court may certify that
appeal of party proceeding in forma pauperis 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.

Cnty.

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). Or, stated another way, an in forma pauperis action is
frivolous and, thus, 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).
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Additionally, under 28 U.S. C. § 2253 (c) (1), an appeal
cannot be taken from a final order in a habeas proceeding unless
a certificate of appealability is issued. A certificate of
appealability may issue only if the applicant makes a
substantial showing of a denial of a constitutional right. The
decision to issue a certificate of appealability requires "an
overview of the claims in the habeas petition and a general
assessment of their merits."
322, 336 (2003).

Miller-El v. Cockrell, 537 U.S.

In order to obtain a certificate of

appealability, a petitioner must show "that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further." Id. "Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner
should be allowed to proceed further." Slack v. McDaniel, 529
U.S.

473, 484 (2000); see also Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000) . "This threshold inquiry does not
require full consideration of the factual or legal bases adduced
in support of the claims." Miller-El, 537 U.S. at 336.
Based on the above analysis of Petitioner's action and
applying the certificate of appealability standards set forth

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above, there are no issues worthy of a certificate of appeal,
and therefore, the Court DENIES the issuance of a certificate.
Furthermore, as there are no non-frivolous issues to raise on
appeal, an appeal would not be taken in good faith. Thus, in
forma pauperis status on appeal is, likewise, DENIED.
CONCLUSION

For the above-stated reasons, Petitioner's action is
DISMISSED,

without prejudice, and the Clerk of Court is directed

to enter the appropriate judgment of dismissal and to CLOSE this
case. Further, the Court
Appealability and DENIES

DENIES

Petitioner a Certificate of

Petitioner leave to proceed in forma

pauperis on appeal.
SO ORDERED, this

day of

LISA /GODBEY WOOD, CHIEF JUDGE
tJNITD STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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, 2015.