Dinkins v. Smalley et al

Filing 6

REPORT AND RECOMMENDATIONS that this case be Dissmissed without prejudice and that this case be Closed -re 1 Complaint filed by George Dinkins Objections to R&R due by 3/23/2009. Signed by Magistrate Judge W. Leon Barfield on 3/6/09. (aeg)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION GEORGE DINKINS, Plaintiff, V. ALLAN SMALLEY, et al., Defendants. CV 308-117

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, an inmate at Valdosta State Prison located in Valdosta, Georgia, when this action commenced, filed the above-captioned civil rights casepro se and requested permission to proceed informa pauper/s ('IFP"). On December 19, 2008, the Court granted Plaintiff leave to proceed IFP, conditioned on the completion and submission of his Prisoner Trust Fund Account Statement and Consent to Collection of Fees form within thirty (30) days. (See doe. no. 3). Thereafter, Plaintiff was released from incarceration, and in an Order dated February 4, 2009, the Court revoked his conditional IFP status. (See dcc. no. 5). In the same Order, the Court directed Plaintiff to submit the balance of the 5350.00 filing fee or a new motion to proceed IFP within twenty (20) days if he wished to pursue his case. (j at 2). Plaintiff was warned that if no response was timely received, the Court would presume he desired to have his case voluntarily dismissed and would recommend dismissal of his case without prejudice. ( j ) . The time for responding has expired, yet Plaintiff has not submitted either the filing fee or a new IFP motion.

In addition, Plaintiff's service copy of the Court's February 4th Order was returned and marked "Undeliverable." ( docket entry dated Feb. 11, 2009). Thus, in addition to failing

to return the necessary IFP papers or pay the balance of the filing fee, Plaintiff has failed to notify the Court of a change of address. Plaintiff was warned that, if he failed to immediately inform the Court of any change of address while this action is pending, the Court would recommend dismissal of this case. (See doe. no. 3, p. 4). Plaintiffs failure to provide the Court with an address where he can be reached not only violates the Court's previous Orders, but it also has the effect of saddling the Court with a stagnant case. The Eleventh Circuit has stated that "[a] district court has inherent authority to manage its own docket 'so as to achieve the orderly and expeditious disposition of cases." Eciuity Lifestyle Props.. Inc. v. Fla. Mowing & Landscape Serv., Inc., F.3d , No. 07-11342,

2009 WL 250601, at *4 (11th Cir. Feb. 4, 2009) (quoting Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991)). This authority includes the power to dismiss a case for failure to prosecute or failure to comply with a court order.

jj., ( citing Fed. R. Civ. P. 41(b)); see also H yler v.

Re ynolds Metal Co., 434 F.2d 1064, 1065 (5th Cir. 1970) ("It is well settled that a district court has inherent power to dismiss a case for failure to prosecute. . . ."). Moreover, the Local Rules of the Southern District of Georgia dictate that an "assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice. . . [for] failure to prosecute a civil action with reasonable promptness." Loc. R. 41 .1(c). The test for determining the appropriateness of dismissal is whether there is "a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Here, Plaintiff's failure to comply 2

with the Court' s February 4th Order or even to provide the Court with a valid address amounts not only to a failure to prosecute, but also an abandonment of his case. This is precisely the type of neglect contemplated by the Local Rules. Furthermore, because Plaintiff sought permission to proceed IFP, the Court finds that the imposition of monetary sanctions is not a feasible sanction. However, the Court recognizes that Plaintiff is proceeding pro se, and courts have voiced a dislike for the harshness of dismissing a pro se case with prejudice prior to an adjudication on the merits. t See, e.g., Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Dickson v. Ga. State Bd. of Pardons & Paroles, No. 1:06-CV-1310-JTC, 2007 WL 2904168, at *6 (N.D. Ga. Oct. 3, 2007). Thus, the Court is not persuaded that it would be appropriate to dismiss the instant action with prejudice. The Court is not permanently barring Plaintiff from bringing a meritorious claim. It is simply recommending dismissing the case without prejudice until such time as Plaintiff is willing to file his case pursue it.

For the reasons set forth herein, the Court REPORTS and RECOMMENDS that this case be DISMISSED without prejudice and that this case be CLOSED. SO REPORTED and RECOMMENDED t hi7"t1ay of March, 2009, at Augusta, Georgia.

UNITED S ATES MA RATE JUDGE

t Unless the Court specifies otherwise, a dismissal for failure to prosecute operates as an adjudication on the merits. Fed. R. Civ. P. 4 1(b). 3