Asberry v. Turner et al
REPORT AND RECOMMENDATIONS that this case be Dismissed without prejudice and that this civil action be Closed - re 1 Complaint filed by Johnny Frank Asberry, Jr. Objections to R&R due by 10/11/2016. Signed by Magistrate Judge Brian K. Epps on 9/21/16. (cmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JOHNNY FRANK ASBERRY, JR.,
WARDEN VINCE LAUGHLIN; and
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Calhoun State Prison in Morgan, Georgia, has
submitted to the Court for filing a complaint brought pursuant to 42 U.S.C. § 1983
concerning events alleged to have occurred at Wheeler Correctional Facility in Alamo,
Georgia. Plaintiff commenced the case pro se and requested permission to proceed in forma
pauperis (“IFP”). On August 8, 2016, the Court directed Plaintiff to return his Prisoner
Trust Fund Account Statement and Consent to Collection of Fees forms within thirty days
and advised Plaintiff that all prisoners, even those proceeding IFP, must pay the filing fee of
$350.00 in full. 28 U.S.C. § 1915(b)(1). Plaintiff was cautioned that failure to respond
would be an election to have this case voluntarily dismissed without prejudice. (See doc. no.
4.) The time to respond has passed, and Plaintiff has not submitted the documents required
by the Court’s August 8th Order. Nor has he provided the Court with any explanation why
he has not complied.
Plaintiff cannot proceed IFP unless he submits the requisite Trust Fund Account
Statement and consents to the collection of the entire $350.00 filing fee in installments.
Wilson v. Sargent, 313 F.3d 1315, 1319, 1321 (11th Cir. 2002) (citing 28 U.S.C. § 1915).
Plaintiff has been warned that failing to return the necessary IFP papers would be an election
to have his case voluntarily dismissed.
In that same August 8th Order, the Court also instructed Plaintiff he was required to
submit his claims on the standard complaint form used by incarcerated litigants in the
Southern District of Georgia. (See doc. no. 4, pp. 4-6.) The Clerk provided the necessary
form, and the Court provided instructions to Plaintiff on how to submit his claims on the
Plaintiff was cautioned that failure to respond with an amended
complaint would be an election to have this case voluntarily dismissed without prejudice.
(Id. at 6.) Plaintiff has not responded to the Court’s August 8th Order with an amended
A district court has authority to manage its docket to expeditiously resolve cases, and
this authority includes the power to dismiss a case for failure to prosecute or failure to
comply with a court order. Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv.,
Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)); see also Eades v.
Ala. Dep’t of Human Res., 298 F. App’x 862, 863 (11th Cir. 2008) (“District courts possess
the ability to dismiss a case . . . for want of prosecution based on two possible sources of
authority: Fed. R. Civ. P. 41(b) or their inherent authority to manage their dockets.”).
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] [w]illful disobedience or neglect of any order
of the Court; or [a]ny other failure to prosecute a civil action with reasonable promptness.”
Loc. R. 41.1(c). Finally, dismissal without prejudice is generally appropriate pursuant to
Rule 41(b) where a plaintiff has failed to comply with a court order, “especially where the
litigant has been forewarned.” Owens v. Pinellas Cty. Sheriff’s Dep’t, 331 F. App’x 654,
655 (11th Cir. 2009) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). see
also Loc. R. 41.1(b) (Court may dismiss an action sua sponte for “willful disobedience or
neglect of any order of the Court”).
Here, Plaintiff’s failure to file an amended complaint, or even to provide the Court
with an explanation for his failure to amend his complaint, 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. The Court cautioned Plaintiff that a failure to respond
would be an election to have his case voluntarily dismissed. Furthermore, because Plaintiff
sought permission to proceed IFP, the Court finds that the imposition of monetary sanctions
is not a feasible sanction.
As Plaintiff has neither fulfilled the requirements for proceeding IFP, nor paid the
filing fee, nor submitted his claims as directed on the standard complaint form used by
incarcerated litigants in the Southern District of Georgia, the Court REPORTS and
RECOMMENDS that this case be DISMISSED without prejudice and that this civil action
SO REPORTED and RECOMMENDED this 21st day of September, 2016, at Augusta,
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