Douglas v. Flournoy

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this action be DIMISSED, without prejudice, and that the Clerk be directed to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Petition for Writ of Habeas Corpus filed by Melvin Douglas. I further recommend that the Court deny Petitioner leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is ORDERED 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 5/6/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/22/2016. (ca)

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

MELVIN DOUGLAS,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-174

v.
V.J. FLOURNOY,
Respondent.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to keep this Court apprised of
his current address as required by this Court’s Local Rule 11.1. (Doc. 3.) The Court has no way
to communicate with Petitioner due to his failure to update his address, and he has not taken any
action in this case in nearly four months. Therefore, I RECOMMEND that Petitioner’s Petition,
(doc. 1), be DISMISSED without prejudice for his failure to prosecute and failure to follow
this Court’s Rules. I further RECOMMEND that Petitioner be denied leave to appeal in forma
pauperis.
BACKGROUND
Petitioner, an inmate at Federal Satellite Low in Jesup, Georgia, brought this action
pursuant to 28 U.S.C. § 2241 on December 23, 2015. (Doc. 1.) On December 28, 2015, he paid
the $5.00 filing fee. However, prior to his submission of that fee, the Clerk of Court attempted to
mail a notice of deficiency to Petitioner at FCI Jesup. (Doc. 2.) That Notice was returned to the
Court as undeliverable on January 20, 2016. (Doc. 3.) From the returned mail, it appears that
prison officials had attempted to forward the Notice to an address in Henderson, North Carolina.

However, the mail included a notation, “person don’t [sic] live here check address”. (Id.) The
Court has not received any pleading from Petitioner attempting to update his address or advise
the Court of his whereabouts. Indeed, Petitioner has not taken any action in this case after
paying his filing fee nearly four months ago.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to keep the Court
apprised of his address and failure to prosecute this case. For the reasons set forth below, I
recommend that the Petition be dismissed and that Petitioner be denied leave to appeal in forma
pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Rules.

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.
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
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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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);
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). Petitioner has failed to

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update the Court with his address as required by this Court’s Local Rules. S.D. Ga. L. R. 11.1
(“Each attorney and pro se litigant has a continuing obligation to apprise the Court of any
address change.”). Furthermore, with Petitioner not having taken any action on this case in
nearly four months, he has failed to diligently prosecute his claims.

Thus, Petitioner has

demonstrated a clear record of delay and disregard for this Court’s Rules, and a sanction other
than dismissal would not suffice to remedy his deficiencies.
For these reasons, Petitioner’s Petition, (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.
II.

Leave to Appeal In Forma Pauperis.

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

Though

Petitioner 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

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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 Petitioner’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
Petitioner in forma pauperis status on appeal.
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
Petitioner leave to proceed in forma pauperis on appeal.
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.
636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).

See 28 U.S.C. §

Objections to a Report and

Recommendation are not the proper vehicle to raise issues and arguments not previously brought
before the Court. 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

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specificity requirement set out above will not be considered by the District Judge. The Clerk of
Court shall attempt to serve Petitioner with a copy of this Order and Report and
Recommendation at the address in North Carolina on record for Petitioner as well as the
address included in Document No. 3.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of April,
2016.

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

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