Thomas v. Massey et al

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action, without prejudice, and that the Clerk be directed to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Complaint filed by Mickel A. Thomas . 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 objection within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 2/17/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/3/2016. (ca)

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

MICKEL A. THOMAS,
Plaintiff,

CIVIL ACTION NO.: 2:15-cv-132

v.
CAPTAIN VANESSA MASSEY; CAPTAIN
RANDY AUSTIN; MAJOR MICHAEL
HEATH; COLONEL JUDY LOWE; and
NURSE TAWANA HALL,
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 of September 24, 2015. (Doc. 3.) For the following reasons, I RECOMMEND that the
Court DISMISS Plaintiff’s claims without prejudice for failure to follow this Court’s Order and
failure to prosecute. I further RECOMMEND that the Court DENY Plaintiff leave to appeal in
forma pauperis.
BACKGROUND
On September 3, 2015, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Glynn County Detention Center in Brunswick,
Georgia. (Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in forma pauperis.
(Doc. 2.) The Court granted that Motion on September 24, 2015. (Doc. 3.) In that Order, the
Court ordered Plaintiff to immediately inform this Court in writing of any change in his address.
(Id. at p. 3.) The Court emphasized that, should Plaintiff fail to comply with this directive, the
Court would dismiss his case.

Id.

On January 12, 2016, the Court issued a Report and

Recommendation in this action, which the Clerk of the Court mailed to Plaintiff at his last known
place of residence, the Glynn County Jail. (Doc. 9.) However, the mail was returned as
undeliverable because Plaintiff was no longer at the Glynn County Jail. (Doc. 10.) In addition,
the Glynn County Undersheriff wrote a letter to the Court informing it that Plaintiff was no
longer detained at the Jail, as he had been released on November 23, 2015. (Doc. 11.) In the
more than two months since his release, Plaintiff has not made any effort to inform the Court of
his whereabouts.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order. For the reasons set forth below, I RECOMMEND that the Court DISMISS
Plaintiff’s claims and DENY Plaintiff leave to appeal in forma pauperis.
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 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.

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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. Nonetheless, in the case at hand, the Court
advised Plaintiff that his failure to update his address would result in dismissal of this action. (Doc. 3,
p. 3.)

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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
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);

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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). With Plaintiff having
failed to inform the Court of his change of address or his current whereabouts, the Court has no
way to communicate with him and cannot proceed in this case. Moreover, Plaintiff was given
ample notice of the consequences of his failure to follow the Court’s Order, and Plaintiff has not
made any effort to do so. Indeed, Plaintiff has not taken any action in this case since October 27,
2015.
Thus, the Court should DISMISS Plaintiff’s Section 1983 Complaint, (doc. 1), without
prejudice for failure to prosecute and failure to follow the Court’s Order and CLOSE this case.
II.

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

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address that
issue in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take 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. 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.

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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).
Based on the above analysis of Plaintiff’s failure to follow this Court’s directives, there
are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should be DENIED.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this action,
without prejudice, and that the Clerk of Court be directed 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 undersigned failed to address any
contention raised in the pleading must also be included and specifically denoted. Failure to do so
will bar any later challenge or review of the factual findings or legal conclusions herein. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A party should not raise arguments
in Objections that it failed to raise previously. 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

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findings, or recommendation to which objection is made and may accept, reject, or modify, in
whole or in part, the findings or recommendations made herein. Objections not meeting the
specificity requirement set out above will not be considered by the 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 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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 3rd day of February,
2016.

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

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