Butler v. Unknown

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this action be DISMISSED, 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 Kenneth Edward Butler , Jr. I further recommend that the Court deny Plaintiff's certificate of appealablilty and deny him leave to proceed in forma pauperis on appeal. Any pending Motions should be DENIED AS MOOT. Any party seeking to object to this Report and Recomm endation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 12/21/2015). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/3/2015. (ca)

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

KENNETH EDWARD BUTLER, JR.,
Plaintiff,

CIVIL ACTION NO.: 2:15-cv-146

v.
UNKNOWN,
Defendant.

ORDER and REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
directive of October 21, 2015. (Doc. 3.) For the following reasons, I RECOMMEND that the
Complaint (doc. 1) be DISMISSED without prejudice for Plaintiff’s failure to prosecute. I
further RECOMMEND that Plaintiff be denied leave to appeal in forma pauperis.
BACKGROUND
On October 8, 2015, Plaintiff, proceeding pro se, filed a Complaint initiating the present
action. 1 (Doc. 1.) Plaintiff did not pay the required filing fee, but through his initial filing, did
request to proceed in forma pauperis. (Id. at pp. 1-2, Doc. 2.) On October 21, 2015, this Court
directed Plaintiff to amend his Complaint to comply with Federal Rules of Civil Procedure.
(Doc. 3.) The Court deferred ruling on Plaintiff’s request to proceed in forma pauperis, and
Plaintiff was given fourteen (14) days to comply with this Court’s directive. (Id.) To date,
Plaintiff has not taken any action in response to that Order. Indeed, Plaintiff has not made any
filings in this case since his initial filing.
1

Plaintiff’s Complaint was submitted on a “Application Under Section 706(f) of Civil Rights Act of
1964” form.

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 Complaint be dismissed
and that Plaintiff be denied leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow Orders of the Court.

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); 2 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. 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)).

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 Plaintiff that failure to amend his complaint could result in dismissal of this action. (Doc. 3,
p. 6.)

2

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);
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
having neither paid the filing fee nor properly moved to proceed in forma pauperis, the Court
cannot proceed in this case. See 28 U.S.C. §§ 1914, 1915. Moreover, Plaintiff was given ample

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time to follow the Court’s directive, and Plaintiff has not made any effort to do so or to otherwise
prosecute this case.
Thus, Plaintiff’s Complaint, (doc. 1), should be DISMISSED without prejudice for
failure to prosecute, and this case should be CLOSED.
II.

Leave to Appeal In Forma Pauperis

The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

Plaintiff 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 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 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).
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, in forma pauperis status
on appeal should be DENIED.
3

A certificate of appealability is not required in this Section 1983 action.

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CONCLUSION
For the above-stated reasons, it is my RECOMMENDATION that this action be
DISMISSED, 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 a certificate of appealability and deny him leave to proceed in forma pauperis on appeal.
Any pending Motions should be DENIED AS MOOT.
Any party seeking to object to this Report and Recommendation is ORDERED 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. 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 copy of the objections must be served
upon all other parties to the action.

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
herein. Objections not meeting the specificity requirement set out above will not be considered
by the District Judge.
SO REPORTED and RECOMMENDED, this 3rd day of December, 2015.

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

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