Butler v. Johnson et al

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS, without prejudice, Plaintiff's 1 Complaint and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case. I further recommend that the Cou rt DENY Plaintiff leave to proceed in forma pauperis on appeal. 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 (Objections to R&R due by 1/22/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/8/2016. (ca)

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

DEMARCO RASHAD BUTLER,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-18

v.
GLEN JOHNSON; EDWINA JOHNSON;
NATHAN BROOKS; and WILLIAM
STEEDLEY,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
Order of December 11, 2015, (doc. 10), and his failure to inform the Court, in writing or
otherwise, of any new or different address. For the following reasons, I RECOMMEND that
the Court DISMISS without prejudice Plaintiff’s Complaint for failure to prosecute and failure
to follow Court Orders. I further RECOMMEND that the Court DENY Plaintiff leave to appeal
in forma pauperis.
BACKGROUND
Plaintiff, who was formerly housed at Ware State Prison in Waycross, Georgia, filed a
cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his confinement.
By Order dated December 11, 2015, the Court provided Plaintiff with an opportunity to amend
his claims and directed Plaintiff to file an amendment to his Complaint within twenty-one (21)
days of that Order. Plaintiff was also warned that his failure to timely amend his Complaint may
result in the dismissal of his cause of action for failure to prosecute and failure to follow this

Court’s Orders. (Doc. 10, p. 3.) Plaintiff did not file an Amended Complaint. In fact, the
Court’s Order was returned to the Court because Plaintiff has been released from Ware State
Prison. (Docs. 11, 12.) Plaintiff failed to notify the Court of his new address, despite clear
directive to do so. (Doc. 3, p. 3.)
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to prosecute this case.

For the reasons set forth below, I

RECOMMEND the Court DISMISS Plaintiff’s Complaint, without prejudice, and that the
Court DENY him 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 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 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
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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. Nonetheless, in the case at hand, the Court
advised Plaintiff that his failure to update his address would result in the dismissal of his action.

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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
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).

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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 amendment to his complaint despite being apprised of the consequences for failing to
respond. (Doc. 10.) 2 Additionally, with Plaintiff not having taken any action on this case for
over seven months’ time, he has failed to diligently prosecute his claims.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Section 1983
Complaint, (doc. 1), for failure to prosecute and failure to follow this Court’s Orders and
CLOSE this case.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny 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. 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. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or,
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It appears Plaintiff never received the Court’s Order. However, the fault for such a situation lies with
Plaintiff for failing to update his address of record.

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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, the Court should DENY Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS, without
prejudice, Plaintiff’s Complaint and DIRECT the Clerk of Court to enter the appropriate
judgment of dismissal and to CLOSE this case. I further recommend that the Court DENY
Plaintiff leave to proceed in forma pauperis on appeal.
I hereby ORDER 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 undersigned failed to address any
contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions herein.

See 28 U.S.C.

§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). The filing of objections is not a proper
vehicle through which to make new allegations or present additional evidence.
A copy of the objections must be served upon all other parties to the action. 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 whole or in

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part, the findings or recommendations made herein. Objections not meeting the specificity
requirement set out above will not be considered by the 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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 8th day of January,
2016.

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

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