White v. Georgia Board of Pardons and Parole et al

Filing 7

REPORT AND RECOMMENDATIONS that this case be Dismissed w/o prejudice and be Closed - re 1 Complaint filed by Thomas L. White Objections to R&R due by 3/1/2010. Signed by Magistrate Judge W. Leon Barfield on 2/12/10. (cmr)

ORIGJNAL
1N TJiE UNITED STATES DISTRICT COURff S C FOR THE SOUTRERN DISTRJCT OF GEORGf DUBLiN DIVISION THOMASL.WHITE, Plaintiff, v. GBORGIA BOARD OF PARDON AND PAROLE, et al., Defendants. CV309-067
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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pro se Pllaintiffcommenced the above-captioned case by submitting a civil complaint and a motion to proceeğ informa pauperis ("IFP"). However, upon review of Plaintiff's fihing, it was unclear whether he was attempting to assert a claim pursuant to 42 U.S.C. § 1983 or petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. Accordingly, it was also unclear whether Plaintiff, in fihing his IFP motion, was agreeing to pay the $5.00 habeas corpus fihing fee or the $350.00 civil rights fihing fee. The Court therefore denied Plaintiff's IFP motion without prejudice and instructeğ him to submit a new IFP motion within fifteen (15) days ofthe Court's December 7, 2009 Order. (Doc. no. 4, p. 5). Plaintiffwas further instructed to inform the Court ofhis inlention to pursue either habeas corpus relief or a civil rights action within that same 1 5-day period. (j). Plaintiffwas provided instructions for fihing an arnended complaint ifhe chose to pursue a civil rights action, (id. at 5-7), and was told that ifhe informed the Court that he had elected pursue habeas corpus relief, he wotild

be given the opportunity to submit a proper form for habeas relief, (j4. at 7). Plaintiff was specifically warned that if no response was timely received, the Court would recommend dismissal of this action without prejudice. (Ii). However, Plaintiff failed to respond. On January 14, 2010, the Court granted Plaintiff fourteen (14) additional days to comply with the December 7, 2009 Order. (Doc. no. 6, p. 2). Once again, Plaintiff was warned that if he failed to comply after this 14-day extension, the Court would "undoubtedly recommend that his case be dismissed for want of prosecution." (jj (citing Loc. R. 41.1(c))). The time to respond has passed, and Plaintiff has not submitted anew IFP motion or informed the Court whether he intends to pursue habeas corpus relief or a civil rights action. Nor has Plaintiff provided the Court with any explanation why he has not complied. 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." Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F3d 1232, 1240 (11 th Cir. 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. JL (citing Fed, R. Civ. P. 41(b)); see also Hykr v. Reynolds 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

'In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (1 lth Cir. 1981) (en bane), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 2

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 (1 lth Cir. 1985). Here, Plaintiff's failure to comply with the Court's December 7th Order 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. 2 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- 13 10-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 and pursue it.

'Unless the Court specifies otherwise, a dismissal for failure to prosecute operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b).

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 this Georgia.

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Febniary, 2010, at Augusta,

W. LEON BAIFIELD UNITED STATES MAGRATE JUDGE

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