Vargas v. Johns

Filing 10

ORDER dismissing Petitioner's action without prejudice, and the Clerk of Court is directed to enter the appropriate judgment of dismissal and to CLOSE this case. Further, the Court DENIES Petitioner a Certificate of Appealability and DENIES Petitioner leave to proceed in forma pauperis on appeal. Signed by Chief Judge Lisa G. Wood on 10/14/2015. (csr)

R the Uniteb Stateo attrttt Court
for the boutbern 1)itrtd (of deorgia
aptrom ftiiiou
CRISTOBAL VARGAS,
Petitioner,
V.

WARDEN TRACY JOHNS,
Respondent.

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CIVIL ACTION NO. 5:15-cv-007

ORDER

As set forth below, Petitioner has failed to comply with
this Court's Order and has failed to prosecute this action.
Therefore, this case is hereby DISMISSED without prejudice.
Additionally, the Court DENIES Petitioner a certificate of
appealability and denies him leave to appeal in forma pauperis.
BACKGROUND
Petitioner Cristobal Vargas ("Vargas"), who was formerly
incarcerated at D. Ray James Correctional Facility in Folkston,
Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 on January 21, 2015. Dkt. No. 1. Vargas asserted he is
entitled to citizenship status based on his mother's citizenship and
that he was improperly sanctioned with the loss of 41 days' good
conduct time after disciplinary proceedings against him were
completed. Id. at pp. 6-7. The Court entered an Order on January 21,
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2015, directing Respondent to show why Vargas' petition should not be
granted. Dkt. No. 3. This Order also directed Vargas to notify the
Court "immediately" in writing "of any change in address." Id. at
p. 2. Vargas was advised that his failure to do so will result in
dismissal of this case, without prejudice. Id.
Respondent filed a Return on the Order to Show Cause on
February 11, 2015. Dkt. No. 7. In his responsive pleading,
Respondent asserts Petitioner had a projected release date of
February 28, 2015. Id. at p. 2. Following Respondent's Response,
Petitioner did not file a reply or take any other action in this case.
On September 23, 2015, Petitioner was ordered to provide an

updated mailing address within fourteen days of that Order.
Dkt. No. 8. The Court made clear that Petitioner's failure to
respond to that Order would result in dismissal of this case.
Id. After the Court mailed that Order to Petitioner at the only
address that the Court has for him, it was returned as
undeliverable. Dkt. No. 9. Petitioner has not updated his
address or filed any other pleadings in this case since the
Court's show cause Order. Indeed, Petitioner has not taken any
action in this case since January 21, 2015.
DISCUSSION
I. Dismissal for Failure to Prosecute and Follow this Court's
Orders

A district court may dismiss a party's claims for failure
to prosecute pursuant to Federal Rule of Civil Procedure 41(b)

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("Rule 41(b)")' and the court's inherent authority to manage its
docket. Link v. Wabash Railroad Co., 370 U.S. 626 (1962);
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
party'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)).

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The Federal Rules of Civil Procedure may be applied to this matter
pursuant to Rule 12 of the Rules Governing Section 2254 Cases.
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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 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
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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 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 specifically directed to keep this
Court apprised of his current address, Petitioner has failed to
do so. Without any way to contact Petitioner, the Court cannot
adjudicate his claims. Additionally, with Petitioner not having
taken any action on this case for over nine months, he has
failed to diligently prosecute his claims. Thus, Petitioner has
demonstrated a clear record of delay and disregard for this
Court's Orders, and a sanction other than dismissal will not
suffice to remedy his deficiencies.
For these reasons, Petitioner's Section 2241 Petition, dkt.
no. 1, is hereby DISMISSED without prejudice for failure to
prosecute and follow Court this Orders, and this case shall be
CLOSED.
II. Leave to Appeal In Forma Pauperis and Certificate of
Appealability

The Court also denies Petitioner leave to appeal in forma
pauperis, and denies him a Certificate of Appealability ("COA").
Though Petitioner has, of course, not yet filed a notice of appeal, it
is proper to address these issues in the Court's order of dismissal.
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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, "the
district court must issue or deny a certificate of appealability when
it issues a final order adverse to the applicant." 2 (emphasis
supplied); see also, 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. 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).
Additionally, under 28 U.S.C. § 2253(c) (1), an appeal cannot be
taken from a final order in a habeas proceeding unless a certificate

2

Pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases,
Rule 11 may be applied to cases brought pursuant to 28 U.S.C. § 2241.
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of appealability is issued. A certificate of appealability may issue
only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of
appealability requires "an overview of the claims in the habeas
petition and a general assessment of their merits." Miller-El

V.

Cockrell, 537 U.S. 322, 336 (2003) . In order to obtain a certificate
of appealability, a petitioner must show "that jurists of reason could
disagree with the district court's resolution of his constitutional
claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further." Id. "Where a
plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed further."
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v.
Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000). "This threshold
inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims." Miller-El, 537 U.S. at 336.
Based on the above analysis of Petitioner's action and applying
the certificate of appealability standards set forth above, there are
no issues worthy of a certificate of appeal, and, therefore, the Court
DENIES the issuance of a certificate. Furthermore, as there are no

non-frivolous issues to raise on appeal, an appeal would not be taken
in good faith. Thus, in forma pauperis status on appeal is, likewise,
DENIED.

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CONCLUSION

For the above-stated reasons, Petitioner's action is DISMISSED,
without prejudice, and the Clerk of Court is directed to enter the
appropriate judgment of dismissal and to CLOSE this case. Further,
the Court DENIES Petitioner a Certificate of Appealability and DENIES
Petitioner leave to proceed in forma pauperis onpeal.
SO ORDERED,

this

day of Octobr, 2015.
If

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SA GODB WOOD, CHIEF JUDGE
ITED STES DISTRICT COURT
UTHERN/DISTRICT OF GEORGIA

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