George v. Newham et al

Filing 26

ORDER granting Defendant's 25 Motion to Dismiss is GRANTED, and this action is DISMISSED, without prejudice. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. All other Motions are DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiff is DENIED leave to proceed in forma pauperis on appeal. Signed by Magistrate Judge R. Stan Baker on 10/28/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

JAMES ALBERT GEORGE, IV,
Plaintiff,

CIVIL ACTION NO.: 5:14-cv-33

v.
LT. CHARLES NEWHAM,
Defendant.

ORDER
This matter comes before the Court on Defendant’s Renewed Motion to Dismiss
(doc. 25) and Plaintiff’s failure to comply with the Court’s Order of July 20, 2015 (doc. 24) and
his failure to inform the Court, in writing or otherwise, of any new or different address. For the
following reasons, Defendants’ Motion is GRANTED and Plaintiff’s claims are DISMISSED
without prejudice for failure to prosecute. Additionally, Plaintiff is DENIED leave to appeal in
forma pauperis.
BACKGROUND
On November 3, 2014, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Coffee Correctional Facility in Nicholls, Georgia.
(Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed In Forma Pauperis. (Doc. 2.)
The Court granted that Motion on April 22, 2015. (Doc. 3.) In that Order, the Court directed
Plaintiff to, among other things, inform the Court upon any change in his address and that his
failure to do so could result in the dismissal of this action. (Id. at 3.)

On February 26, 2015, the undersigned issued an Order and Report and Recommendation
following a frivolity review of Plaintiff’s Complaint. (Doc. 8.) The Court directed a copy of
Plaintiff’s Complaint be served upon Defendant Newham. Id. The Report recommended that
claims against all other Defendants should be dismissed. Id. Plaintiff did not file any objections,
and the Court adopted the Report and Recommendation and dismissed all claims except against
those against Defendant Newham. (Doc. 18.) In the Report and Recommendation, the Court
provided instructions to Plaintiff regarding the prosecution of this action. (Doc. 8, pp. 7-10.)
The Court again emphasized to Plaintiff that he must update the Court regarding any change in
his address and that the Court would dismiss his case if he failed to do so. The Court further
instructed Plaintiff that if he “does not press his case forward, the Court may dismiss it for want
of prosecution.” (Id. at 9.) The Court specifically informed Plaintiff of his obligation to respond
to a motion to dismiss within 14 days of service of such a motion.

(Id. at 9.) The Court

explained that should Plaintiff fail to respond to such a motion, the Court will assume that he
does not oppose the Motion. Id.
Defendant filed a Motion to Dismiss on July 9, 2015. (Doc. 21.) In that Motion,
Defendant submitted that service copies mailed to Plaintiff were returned undeliverable and
argued that Plaintiff has not indicated an interest in pursuing his case. On July 20, 2015, the
Court issued an Order instructing Plaintiff to respond to Defendants’ Motion to Dismiss within
twenty-one days and also directing him to immediately inform this Court and defense counsel of
his current mailing address. (Doc. 24.) The Court alerted Plaintiff that should he fail to respond
to the Motion to Dismiss, the Court would presume that he does not oppose the Motion.
(Doc. 24, p. 2.) In addition, the Court provided Plaintiff with a copy of Federal Rules of Civil

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Procedure 41 and 12 to ensure that he had full notice of the requirements of the Rules regarding
motions to dismiss. Id.
Plaintiff has entirely failed to respond to Defendants’ Motion to Dismiss.

Indeed,

Plaintiff has not made any filings in this case since his October 30, 2014 signed Notice, Consent,
and Reference of a Civil Action to a Magistrate Judge. 1 (Doc. 14.) Furthermore, the Court has
been unable to mail pleadings to Plaintiff, and he has never updated the Court of any change of
address. 2

On October 26, 2015, Defendant filed a renewed Motion to Dismiss based on

Plaintiff’s failure to comply with this Court’s Order and to pursue his case. (Doc. 25.)
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to respond to Defendant’s Motion to Dismiss. For the reasons set
forth below, Plaintiff’s claims are dismissed and he is denied leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Follow this Court’s Orders

A district court may dismiss a plaintiff’s claims for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to
manage its docket. Link v. Wabash Railroad Company, 370 U.S. 626 (1962); 3 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,

1

Plaintiff and Defendant both executed the Notice, Consent, and Reference of a Civil Action to a
Magistrate Judge. See Docs. 14, 19. Thus, upon consent of the parties and by Order dated July 1, 2015,
this case was referred to the undersigned for all further proceedings. (Doc. 20.)
2

The Court’s July 1, 2015 Order was mailed to Plaintiff but was returned as undeliverable on July 13,
2015. (Doc. 23.)

3

In Wabash, the Court held that 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 that his failure to inform the Court upon any change in his address could result in
dismissal of this action. (Doc. 3, p. 3.)

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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. Tallahasse
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

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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).
Despite having been advised of his obligation to inform the Court upon any change in his
address, Plaintiff has failed to do so. See Local Rule 11.1 (“each attorney and pro se litigant has
a continuing obligation to apprise the Court of any address change”).

Moreover, Plaintiff has

not filed any opposition to Defendants’ Motion to Dismiss despite being apprised of the
consequences for failing to respond. 4 Additionally, with Plaintiff not having taken any action on
this case for approximately twelve months, he has failed to diligently prosecute his claims.
Consequently, no sanction other than dismissal is appropriate.
Thus, Plaintiff’s Section 1983 Complaint (doc. 1) is DISMISSED without prejudice for
failure to prosecute and failure to comply with this Court’s Orders.

4

It is possible that Plaintiff never received the Defendant’s Motion or the Court’s Order instructing
Plaintiff to respond to the same. However, the fault for such a situation lies with Plaintiff for failing to
update his address of record.

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II.

Leave to Appeal In Forma Pauperis

The Court also denies Plaintiff leave to appeal in forma pauperis. Though Plaintiff has,
of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the
Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not
take 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, 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. Cnty. 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 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). Or,
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 failure to follow this Court’s directives, there
are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal is DENIED.

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CONCLUSION
THEREFORE, IT IS HEREBY ORDERED that for the above-stated reasons,
Defendant’s Motion to Dismiss (doc. 25) is GRANTED, and this action is DISMISSED,
without prejudice. The Clerk of Court is DIRECTED to enter the appropriate judgment of
dismissal and to CLOSE this case. All other Motions are DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff is DENIED leave to proceed in forma
pauperis on appeal.
SO ORDERED, this 28th day of October, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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