Rodney v. McFarrin et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint based on his failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and enter the appropri ate judgment of dismissal. It is further RECOMMENDED that the Court DENY Plaintiff 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 11/8/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/25/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 2:17-cv-97
REBECCA MCFARRIN; and T. QUINN,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 to contest certain events
occurring in McIntosh County, Georgia. (Doc. 1.) Plaintiff also filed a Motion to Proceed in
Forma Pauperis. (Doc. 2.) This Court deferred ruling on Plaintiff’s Motion by Order dated
August 25, 2017, as the Court could not ascertain whether Plaintiff had the ability to pay the
requisite filing fee based on his Motion alone. (Doc. 4.) The Court ordered Plaintiff to correct
the deficiencies in his Motion or to pay the entire filing fee within fourteen (14) days of its Order
and warned Plaintiff that his failure to do so would result in the dismissal of his Complaint. (Id.
at pp. 2–3.)
For the reasons which follow, the Court DENIES Plaintiff’s Motion for Leave to Proceed
in Forma Pauperis, (doc. 2). For these same reasons, I RECOMMEND the Court DISMISS
without prejudice Plaintiff’s Complaint based on his failure to follow this Court’s Order and
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in forma
Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff
asserts Defendants violated his right to due process by refusing to provide him with any
information about his case. (Doc. 1, pp. 3–4.) Plaintiff contends he was denied the ability to
enter a plea in McIntosh County Superior Court and was removed from court and told not to
return after he requested information concerning his indictment. Plaintiff also contends he was
told he would get a portion of his bail refunded to him once he appeared in court. (Id. at 4.)
Plaintiff seeks to have his bail amount returned to him and to be reimbursed for his travel from
New York to Georgia for court appearances. (Id. at p. 5.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys. . . .”) (quoting Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested
that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”).
Dismissal for Failure to Follow this Court’s Orders
As noted above, the Court directed Plaintiff to either complete and return the required
documents to proceed in forma pauperis or to pay the entire filing fee within fourteen (14) days
of its August 25, 2017, Order. (Doc. 4, pp. 2–3.) Plaintiff was cautioned that his failure “to
complete and return the required documents by September 9, 2017, or pay the entire fee”
would cause the Court to “presume that Plaintiff does not intend to pursue this action and will
dismiss this case without prejudice.” (Id. at p. 2 (emphases in original).) Subsequent to that
Order, Plaintiff filed two “Affidavits of Fact”.
(Docs. 6, 7.)
Nothing in these filings is
responsive to this Court’s Order. Additionally, Plaintiff failed to move to proceed in forma
pauperis using the forms attached to that Order, and he failed to pay the entire filing fee.
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); 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. 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).
Plaintiff did not comply with this Court’s Order to complete and return the required
documents to proceed in forma pauperis or to pay the entire filing fee, despite this Court’s
directive to do so and the Court’s warning that the failure to take either action would result in the
dismissal of this action. Instead, Plaintiff filed “Affidavits of Fact” that are not responsive to or
in compliance with this Court’s Order.
Because Plaintiff did not comply with this Court’s Order, the Court should DISMISS
without prejudice Plaintiff’s Complaint. See Brown, 205 F. App’x at 802 (upholding dismissal
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
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1
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 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
A certificate of appealability is not required in this Section 1983 action.
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). 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, the Court should DENY
Plaintiff in forma pauperis status on appeal.
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave to Proceed in
I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s Complaint for failure to follow this Court’s Order and DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal.
RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.
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
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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