Yanes v. McManus et al

Filing 27

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action without prejudice, and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Complaint filed by Alicio Yanes. I further RE COMMEND that the Court DENY Plaintiff leave to proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objection within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 4/27/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/13/2016. (ca)

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

ALICIO YANES,
Plaintiff,

CIVIL ACTION NO. 2:15-cv-36

v.
WARDEN SUZANNE HASTINGS; and THE
UNITED STATES OF AMERICA,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
Order to update his address. Plaintiff filed a Motion to Proceed In Forma Pauperis in this Court,
(doc. 2), and that Motion was granted. (Doc. 3.) For the following reasons, I RECOMMEND
that the Court DISMISS the remaining portions of Plaintiff’s Complaint, (doc. 1), without
prejudice for Plaintiff’s failure to prosecute and failure to follow this Court’s Order. I further
RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND
On March 16, 2015, Plaintiff, proceeding pro se, filed a Complaint in this Court
contesting certain conditions of his confinement while housed at the Federal Correctional
Institution in Jesup, Georgia. (Doc. 1.) Plaintiff also filed a Motion to Proceed In Forma
Pauperis. (Doc. 2.) On April 28, 2015, the Court issued an Order granting Plaintiff’s Motion to
Proceed In Forma Pauperis.

(Doc. 3.)

In granting Plaintiff’s Motion, the Court advised

Plaintiff, “While this action is pending, the Plaintiff 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.” (Doc. 3, p. 4.) Plaintiff informed the Court of a correct address, via Notice of
Change of Address, which indicated Plaintiff’s address with an effective date of July 28, 2015.
The Court notes Plaintiff informed the Court that his mail should be sent in care of “Noemi
Pineda” in Kenansville, North Carolina. (Doc. 6.)
The Court conducted the requisite frivolity review of Plaintiff’s Complaint and
recommended that certain claims against certain Defendants be dismissed, as Plaintiff failed to
state a claim against those Defendants. (Doc. 8.) Plaintiff failed to file Objections to this
recommendation, which was in turn adopted as the opinion of the Court. Thus, Plaintiff’s claims
against Wendy McManus; the Regional Director for the Southern Region of the Federal Bureau
of Prisons; and the Director for the Bureau of Prisons, were dismissed as named Defendants.
(Doc. 12.)
Defendants then filed a Notice of Deportation, which indicated Plaintiff was deported to
Mexico on September 29, 2015. (Doc. 17-1, p. 2.) The Court noted Plaintiff failed to notify the
Court of his change of address, as he was instructed to do. Therefore, on March 2, 2016, Court
directed Plaintiff to update the Court with his current address within twenty-one days of its
Order. (Doc. 24.)
Plaintiff has not notified the Court of his change of address or made any effort to inform
the Court of his whereabouts. In addition, Plaintiff has not filed any pleading in this case since
July 9, 2015.

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DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s directive. For the reasons set forth below, I RECOMMEND that the Court DISMISS
Plaintiff’s Complaint and DENY Plaintiff leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Order
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 R.R. Co., 370 U.S. 626 (1962); 1 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 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 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
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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.

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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 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 Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute
Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and
court had informed plaintiff that noncompliance could lead to dismissal). Plaintiff failed to
comply with this Court’s directive to provide the Court with an updated address and was
forewarned that his failure to comply with the Court’s directives would result in the dismissal of
his cause of action.

Moreover, without a proper address for Plaintiff, the Court cannot

communicate with him and cannot administer this case. Furthermore, Plaintiff has not taken any
action in this case in approximately nine months.

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For all of these reasons, Plaintiff’s remaining claims against Defendants Suzanne
Hastings and the United State of America, (doc. 1), should be DISMISSED without prejudice
for failure to prosecute and failure to follow this Court’s Order, and this case should be
CLOSED. 2
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See 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 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. Cty. 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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In making this recommendation, the undersigned distinguishes between the claims against the
remaining Defendants, which should be dismissed without prejudice, and those claims against the
Defendants who were dismissed by Order dated January 11, 2016. Plaintiff’s claims against these latter
Defendants were dismissed with prejudice.

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Based on the above analysis of Plaintiff’s action, 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
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this action
without prejudice, and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case. I further RECOMMEND that the Court DENY Plaintiff
leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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 by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a 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

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff at his last known address.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of April,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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