Holmes v. Flournoy
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Holmes' 1 Petition for Writ of Habeas Corpus, without prejudice for failure to follow the Court's directive and failure to prosecute. It is further RECOMMENDED tha t the Court DENY Petitioner leave to appeal in forma pauperis. 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. (Objections to R&R due by 10/20/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/6/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JOSEPH LEE HOLMES, JR,
CIVIL ACTION NO.: 2:17-cv-71
WARDEN VICTOR FLOURNOY,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Petitioner Joseph Lee Holmes Jr.’s (“Holmes”)
failure to comply with the Court’s Order of August 24, 2017, (doc. 7), and his failure to
prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS
Holmes’ action without prejudice for failure to follow the Court’s directive and failure to
prosecute. 1 I further RECOMMEND that the Court DENY Petitioner leave to appeal in forma
A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent to
dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotation marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. Of Elec. Workers
Local Union, 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that the R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK,
2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that the magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
On June 22, 2017, Holmes, who is currently housed at the Federal Correctional Institute
in Jesup, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) Respondent filed a Motion to Dismiss on August 10, 2017. (Doc. 6.) On August 24,
2017, the Court issued an Order directing Holmes to file any objections to Respondent’s Motion
to Dismiss within fourteen (14) days. (Doc. 7.) The Court specifically advised Holmes that if he
failed to respond, the Court would presume that he does not oppose dismissal of this action. (Id.)
Despite this warning, Holmes has entirely failed to respond to Respondent’s Motion to Dismiss.
Indeed, Holmes has not made any filings in this case since June 22, 2017. (Doc. 1.)
The Court must now determine how to address Holmes’s failure to comply with this
Court’s Orders, his failure to respond to Respondent’s Motion to Dismiss, and his failure to
prosecute this action.
For the reasons set forth below, I RECOMMEND that the Court
DISMISS Holmes’s Petition and DENY him leave to appeal in forma pauperis.
Dismissal for Failure to Prosecute and Follow this Court’s Orders
A district court may dismiss a petitioner’s claims for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to
manage its docket. Link v. Wabash R.R. Co., 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 petitioner’s claims where he has failed to prosecute those
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 Holmes that his failure to respond to the Motion to Dismiss would result in dismissal of this
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.
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, where plaintiff did not respond to court order to supply
defendant’s current address for purpose of service); Brown, 205 F. App’x at 802–03 (upholding
dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that noncompliance could lead to
Despite having been advised of his obligation to respond to Respondent’s Motion to
Dismiss and the consequences for failing to respond, Holmes has not filed any opposition to
Respondent’s Motion. Additionally, with Holmes not having taken any action in this case for
over three months, he has failed to diligently prosecute his claims.
Thus, the Court should DISMISS Holmes’ Section 2241 Petition, (doc. 1), without
prejudice, for failure to prosecute, and this case should be CLOSED.
Leave to Appeal in Forma Pauperis
The Court should also deny Holmes leave to appeal in forma pauperis. Though Holmes
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. 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 Holmes’s failure to follow this Court’s directives and
failure to prosecute, 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 Holmes in forma pauperis status on
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 Holmes 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.
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. The Clerk of Court is DIRECTED to serve a copy of this Report and
Recommendation upon Holmes and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 6th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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