Massey v. Grimes

Filing 8

ORDER DISMISSING CASE without prejudice. Further, the court DENIES Plaintiff leave to proceed in forma pauperis on appeal. Signed by Chief Judge Lisa G. Wood on 9/1/2015. (ca)

3n the Uniteb btatto flIttitt Court
for the boutbern flitrttt Of georgia
runMuitk 301bioton
TIMOTHY JEROME MASSEY,
CIVIL ACTION NO.: CV215-021

Plaintiff,
V.

KYLE GRIMES,
Defendant.
ORDER
As detailed below, Plaintiff has failed to follow this
Court's directives to provide required filing fee forms and has
failed to update the Court on his current mailing address.
Therefore, the Court cannot effectively administer this case.
Consequently, the Court hereby DISMISSES this action without
prejudice, and DENIES Petitioner leave to appeal in forma
pauperis.
BACKGROUND
Plaintiff, seeking to proceed in forma pauperis, brought
this action pursuant to 42 U.S.C. § 1983. Dkt. No. 1. At the
time he filed this suit, Plaintiff was detained at the Glynn
County Detention Center. Id. By Order dated April 28, 2015,
the Court advised Plaintiff of the Prison Litigation Reform

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Act's procedures and requirements for filing and litigating
prison civil rights suits. Dkt. No. 3. The Court granted
Plaintiff leave to proceed in forma pauperis, and instructed him
to sign and return the Consent to Collection of Fees from Trust
Account Form and the Prisoner Trust Fund Account Statement. Id.
The Court emphasized that Plaintiff must return these forms
within thirty (30) days from the date of the Order in order to
proceed with this action. Id., at p. 3. Moreover, the Court
made clear that if Plaintiff did not timely respond to the
Order, "the Court will presume that Plaintiff desires to have
this lawsuit voluntarily dismissed, and the Court will dismiss
Plaintiff's case without prejudice." Id.. Additionally, the
Court forewarned Plaintiff, that "[w]hile this action is
pending, [he] shall immediately inform this Court in writing of
any change of address. Failure to do so will result in dismissal
of this case, without prejudice." Id.
For several weeks following that Order, Plaintiff failed to
submit the Consent to Collection of Fees Form or the Prisoner
Trust Fund Account Statement. However, on May 26, 2015,
Plaintiff submitted a Notice of Change of Address. Dkt. No. 4.
Accordingly, by Order dated July 16, 2015, the Court directed
the Clerk of Court to send Plaintiff the required forms at his
new address. Dkt. No. 5. The Court ordered Plaintiff to
complete these forms and return them to the Court within thirty
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days. Id. The Court once again made clear that should
Plaintiff fail to timely return these forms, the Court would
presume "that Plaintiff does not intend to pursue this action
and will dismiss this case without prejudice."

Id. (emphasis in

original). The Clerk of the Court mailed a copy of that Order,
the Court's prior Order, as well as the Consent to Collection of
Fees Form and the Prisoner Trust Fund Account Statement to
Plaintiff at his new address. However, those mailings have now
been returned to the Court as undeliverable. Dkt. Nos. 6, 7.
DISCUSSION
I. Dismissal For Failure to Prosecute and Follow This
Court's Orders

This Court may dismiss a plaintiff's claims sua sponte
pursuant to either Federal Rule of Civil Procedure 41(b) ("Rule
41(b)") and the court's inherent authority to manage its docket.
Link v. Wabash Railroad Company, 370 U.S. 626 (1962);' Coleman
v. 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
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 Plaintiff that his failure to return the
required forms and his failure to notify the Court of his change of
address would result in dismissal of this action.
(Doc. 3, p. 3.)
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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. 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).
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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 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 Plaintiff,
the Court has no means to adjudicate the merits of his claims.
Moreover, the Court gave Plaintiff several opportunities to
return the Consent to Collection of Fees from Trust Account Form
and the Prisoner Trust Fund Account Statement, and he failed to
do so. Furthermore, the Court specifically advised Plaintiff
that failing to keep the Court apprised of his address and
failing to return the required forms would result in the
dismissal of this case. Despite these warnings, Plaintiff has
failed to comply with this Court's Orders. Accordingly, his
claims are DIMISSED WITHOUT PREJUDICE.
II. Leave to Appeal In Forma Pauperis

The Court also DENIES Plaintiff leave to appeal in forma
pauperis. Though Petitioner has, of course, not yet filed a
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notice of appeal, it is appropriate to address this issue in the
Court's order of dismissal. 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. ofVolusia, 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, 403CROO1, 2009
WL 307872, at *1_2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff's failure to
comply with this Court's Orders, there are no non-frivolous
issues for him to raise on appeal, and any appeal he might take
in this case would not be taken in good faith.

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CONCLUSION

For the above-stated reasons, the Court DISMISSES this
action, without prejudice, and the Clerk of Court is directed to
enter the appropriate judgment of dismissal and to CLOSE this
case. Further, the court DENIES Plaintiff leave to proceed in
forma pauperis on appeal.
SO ORDERED, this

y o_______________, 2015.

LI'A GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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