Altman v. United States Of America

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Altman's 3 Motion to Vacate/Set Aside/Correct Sentence (2255), due to Altman's failure to prosecute and failure to follow this Court's Orde r. It is also RECOMMENDED that the Court DENY Altman in forma pauperis status on appeal and DENY Altman a Certificate of Appealibility. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections with in fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/2/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2016. (csr)

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

ROBERT TROY ALTMAN,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-141

v.
UNITED STATES OF AMERICA,

(Case No.: 2:14-cr-15)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Robert Altman’s (“Altman”) failure to comply
with the Court’s Order to keep the Court apprised of any change in his address. For the
following reasons, I RECOMMEND that the Court DISMISS without prejudice Altman’s
Motion to Vacate, Set Aside, or Correct his Sentence, filed pursuant to 28 U.S.C. § 2255, (doc.
1), due to Altman’s failure to prosecute and failure to follow this Court’s Order. I further
RECOMMEND that the Court DENY Altman in forma pauperis status on appeal and DENY
Altman a Certificate of Appealability.
BACKGROUND
Altman filed a Section 2255 Motion alleging claims of ineffective assistance of counsel,
(doc. 1-2), as well as a motion to seal that pleading, (doc. 1), on September 23, 2015. The Court
granted Altman’s Motion to Seal on October 21, 2016. (Doc. 2.) However, the Court’s Order,
(doc. 2), was returned as undeliverable on October 31, 2016. (Doc. 5.) On December 2, 2016,
the Court ordered Altman to advise the Court of his current address within fourteen (14) days.

(Doc. 9.) The Court emphasized that, should Altman fail to comply with this directive, the Court
would dismiss his case. Id.
On December 12, 2016, the Court’s Order dated December 2, 2016, was also returned as
undeliverable. (Doc. 10.) Altman has not notified the Court of his change of address or made
any effort to inform the Court of his whereabouts. Indeed, Altman has not taken any action in
this case since September 23, 2015.
DISCUSSION
The Court must now determine how to address Altman’s failure to comply with this
Court’s directive. For the reasons set forth below, I RECOMMEND that the Court DISMISS
without prejudice Altman’s Section 2255 Motion, DENY Altman leave to appeal in forma
pauperis, and DENY Altman a Certificate of Appealability
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Order
A district court may dismiss a petitioner’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 petitioner’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.

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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

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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). With Altman having
failed to update the Court with his current address, the Court has no means by which it can
communicate with Altman.

Thus, the Court is unable to move forward with this case.

Moreover, Altman was given ample time to follow the Court’s directive, and Altman has not
made any effort to do so. Additionally, Altman has not taken any action in this case in over
fourteen months.
Thus, I RECOMMEND the Court DISMISS without prejudice Altman’s Section 2255
Motion and DIRECT the Clerk of Court to CLOSE this case.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Altman leave to appeal in forma pauperis. Though Altman

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. 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

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theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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).
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.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). 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 Certificate of Appealability standards set forth above, there are no
discernable issues worthy of a certificate of appeal; therefore, the Court should DENY the
issuance of a Certificate of Appealability. If the Court adopts this recommendation and denies

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Altman a Certificate of Appealability, Altman is advised that he “may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.”
Rule 11(a), Rules Governing Section 2255 Cases in the United States District Courts.
Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal would not be
taken in good faith. Thus, the Court should likewise DENY in forma pauperis status on appeal
and DENY Altman a Certificate of Appealability.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS without
prejudice Altman’s Motion to Vacate, Set Aside, or Correct his Sentence, filed pursuant to 28
U.S.C. § 2255, and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND
that the Court DENY Altman in forma pauperis status on appeal and DENY Altman a
Certificate of Appealability.
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

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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 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
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Altman.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2016.

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

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