Franklin v. Savage et al

Filing 14

ORDER dismissing without prejudice Plaintiff's Complaint for failure to follow this Court's Orders and Local Rules and failure to prosecute. The Court denies Plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Benjamin W. Cheesbro on 5/9/2024. (gmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
IMARE DAMU F.J. FRANLKIN,
Plaintiff,

CIVIL ACTION NO.: 2:24-cv-24

v.
HEATHER SAVAGE, DUSTIN SHIPSKIE,
RICKY HALL, TY TEONNA ANDERSON,
and GLYNN COUNTY POLICE
DEPARTMENT,
Defendants.
ORDER
Plaintiff has failed to comply with this Court’s March 8 and April 17, 2024 Orders and
Local Rules. Docs. 7, 13; Local R. 11.1. As discussed in further detail below, I DISMISS
without prejudice Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s Orders and
Local Rules and failure to prosecute, DIRECT the Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis. 1
BACKGROUND
On February 20, 2024, Plaintiff, proceeding pro se, filed a Complaint against Defendants,
alleging his constitutional rights were violated. Doc. 1. Plaintiff later filed a motion for leave to
proceed in forma pauperis. Doc. 6. The Court granted Plaintiff leave to proceed 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 quotations marks omitted). As noted elsewhere, the Court forewarned
Plaintiff his failure to respond to the Court’s Orders would result in the dismissal of his case. Docs. 7, 13.
In addition, Plaintiff has the opportunity to respond to this Order.
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pauperis on March 8, 2024, and informed Plaintiff he was to immediately inform the Court in
writing of any change of address. Doc. 7 at 2 (citing Local R. 11.1). One of the Court’s
mailings was returned as undeliverable, as Plaintiff was no longer at the address he provided the
Court. Doc. 12. The Court issued an Order on April 17, 2024, directing Plaintiff to notify the
Court of any change in address. The Court also advised Plaintiff his failure to respond to the
Order or otherwise show cause why his case should not be dismissed would result in the
dismissal of his cause of action. Doc. 13. In addition, this Court’s Local Rules require pro se
litigants to update the Court of any change in address, which Plaintiff has failed to do. Local R.
11.1.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and Local Rules and failure to prosecute. For the reasons set forth below, the
Court DISMISSES without prejudice Plaintiff’s Complaint and DENIES Plaintiff leave to
appeal in forma pauperis.
I.

Dismissal for Failure to Follow This Court’s Orders and to Prosecute
A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal

Rule of Civil Procedure 41(b) or 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 Cnty. 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
In Wabash, the Court held 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 his failure to comply with the Court’s Orders would result in dismissal of this
action. Docs. 7, 13.
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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 dismissal with prejudice for failure to prosecute is a “sanction . . . to be utilized
only in extreme situations” and requires a court to “(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 Cnty. 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 § 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

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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 § 1983 claims
where plaintiff failed to follow court order to file amended complaint and court had informed
plaintiff non-compliance could lead to dismissal).
With Plaintiff having failed to follow this Court’s Orders and Local Rules, the Court
cannot move forward with this case. Moreover, Plaintiff was given notice of the consequences
of his failure to follow the Court’s Orders, and Plaintiff has not done so. Thus, the Court
DISMISSES without prejudice Plaintiff’s Complaint for failure to follow this Court’s Orders
and Local Rules and failure to prosecute and DIRECTS the Clerk of Court to CLOSE this case
and enter the appropriate judgment of dismissal.
II.

Leave to Appeal in Forma Pauperis
The Court also denies Plaintiff leave to appeal in forma pauperis. Though Plaintiff has

not yet filed a notice of appeal, it is appropriate to address that issue in the Court’s order of
dismissal. See Fed. R. App. P. 24(a)(3) (noting trial court may certify 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, either before or
after the notice of appeal is filed, 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. County 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

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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). An in
forma pauperis action is frivolous and not brought in good faith if it is “without arguable merit
either in law or fact.” Moore v. Bargstedt, 203 F. App’x 321, 323 (11th Cir. 2006) (quoting Bilal
v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)); 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 failure to follow this Court’s Orders 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 DENIES Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I DISMISS without prejudice Plaintiff’s Complaint for
failure to follow this Court’s Orders and Local Rules and failure to prosecute, DIRECT the
Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY
Plaintiff leave to appeal in forma pauperis.
SO ORDERED, this 9th day of May, 2024.

_____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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