Mora-Gonzalez v. McRae Correctional Facility
Filing
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REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action without prejudice, and that the Clerk be directed to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Petition for Writ of Habeas Corpus f iled by Juan Fernando Mora-Gonzalez. I further RECOMMEND that the Court DENY Petitioner leave to proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections w ithin fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 5/12/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/28/2016. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
JUAN FERNANDO MORA-GONZALEZ,
Petitioner,
CIVIL ACTION NO.: 5:14-cv-100
v.
WARDEN TRACY JOHNS,
Respondent.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner Juan Fernando Mora-Gonzalez’s
(“Mora-Gonzalez”) failure to comply with the Court’s Order to keep the Court apprised of any
change in his address. For the following reasons, I RECOMMEND that the Court DISMISS
Mora-Gonzalez’s Complaint, (doc. 1), without prejudice for his failure to prosecute and failure
to follow this Court’s Order. I further RECOMMEND that the Court DENY Mora-Gonzalez
leave to appeal in forma pauperis.
BACKGROUND
On November 24, 2014, Mora-Gonzalez filed a Petition for Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241. (Doc. 1.) On December 5, 2014, the Court ordered Respondent to
show cause why Mora-Gonzalez’s writ should not be granted. (Doc. 3.) In that Order, the Court
ordered Petitioner to immediately inform this Court in writing of any change in his address. (Id.
at p. 2.) The Court emphasized that, should Petitioner fail to comply with this directive, the
Court would dismiss his case. Id.
On December 15, 2015, the Court issued a Text Order on Respondent’s Motion to
Withdraw and Substitute Attorney. (Doc. 13.) The Clerk of the Court mailed that Order to
Petitioner at his last known place of residence, D. Ray James Correctional Facility. However,
the mail was returned as undeliverable because Petitioner was no longer at the prison. (Docs. 14,
15.) Petitioner has not notified the Court of his change of address or made any effort to inform
the Court of his whereabouts. Indeed, Petitioner has not taken any action in this case since April
6, 2015.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to comply with this
Court’s directive. For the reasons set forth below, I RECOMMEND that the Court DISMISS
Petitioner’s Complaint and DENY Petitioner leave to appeal in forma pauperis.
I.
Dismissal for Failure to Prosecute and Failure to Follow this Court’s Order
A district court may dismiss an action sua sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) or the court’s inherent authority to manage its docket. Link v.
Wabash R.R. Co., 370 U.S. 626 (1962); 1 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, 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
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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.
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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 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
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
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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). With Petitioner having
failed to update the Court with his current address, the Court has no means by which it can
communicate with Petitioner.
Thus, the Court is unable to move forward with this case.
Moreover, Petitioner was given ample time to follow the Court’s directive, and he has not made
any effort to do so. Additionally, Petitioner has not taken any action in this case in over one
year.
Thus, Mora-Gonzalez’s Complaint, (doc. 1), should be DISMISSED without prejudice
for failure to prosecute and failure to follow this Court’s Order, and this case should be
CLOSED.
II.
Leave to Appeal In Forma Pauperis
The Court should also deny Mora-Gonzalez leave to appeal in forma pauperis. Though
Mora-Gonzalez has, of course, not yet filed a notice of appeal, it is proper to address these issues
in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal of party proceeding in forma pauperis 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 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. Cty. 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.
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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 Petitioner’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Mora-Gonzalez in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, it is my RECOMMENDATION that the Court DISMISS
this action without prejudice, and that the Clerk of Court be directed to enter the appropriate
judgment of dismissal and to CLOSE this case. I further RECOMMEND that the Court DENY
Petitioner leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
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whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 28th day of April,
2016.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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