Tabb v. Bryson et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims without prejudice for failure to follow the Court's directive and failure to prosecute re: 1 Complaint and DISMISS as moot Defendants' [57 ] MOTION to Dismiss. It is further RECOMMENDED that the Court DIRECT the Clerk of Court to CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation is ordered to file specifi c written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 10/26/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/12/2016. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:15-cv-58
HOMER BRYSON; TOM GRAMIAK;
NATHAN BROOKS; WILLIAM
STEEDLEY; KIMBERLY LOWE; EDWINA
JOHNSON; JUANDA CRAWFORD; JANE
DOE; MR. FERREL; and JANE DOE 2,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Plaintiff’s failure to comply with the Court’s
Order of April 11, 2016, (doc. 58), and his failure to prosecute this action. For the following
reasons, I RECOMMEND the Court DISMISS Plaintiff’s claims without prejudice for failure
to follow the Court’s directive and failure to prosecute and DISMISS as moot Defendants’
Motion to Dismiss, (doc. 57). I further RECOMMEND that the Court DIRECT the Clerk of
Court to CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis.
On August 5, 2015, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while he was housed at Ware State Prison in Waycross, Georgia.
(Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.)
The Court granted that Motion on August 19, 2015. (Doc. 3.)
Plaintiff filed a Motion to Amend his Complaint, which the Court granted on January 8,
2016. (Docs. 20, 27.) Also on January 8, 2016, the undersigned issued an Order and Report and
Recommendation following a frivolity review of Plaintiff’s Complaint. (Docs. 28, 29.) The
Court directed a copy of Plaintiff’s Complaint be served upon all Defendants, as Plaintiff had
stated at least one viable claim against each Defendant.
The Report recommended
dismissal of Plaintiff’s: monetary damages claims against all Defendants in their official
capacities and against Defendant Bryson; Eighth Amendment denial of exercise claims against
Defendants Crawford, Lowe, Doe, Ferrel, and Jane Doe-2; Eighth Amendment inadequate food
claims against Defendants Brooks, Steedly, Lowe, Ferrel, and Jane Doe-2; Eighth Amendment
inadequate medical care claims against Defendants Brooks, Steedley, Lowe, and Jane Doe; and
procedural and substantive due process claims against Defendants Johnson, Crawford, Jane Doe,
Ferrel, and Jane Doe-2. (Id.) I also recommended the Court deny Plaintiff’s Motion for a
Plaintiff did file Objections, but the Court overruled those
Objections and adopted the Report and Recommendation as the opinion of the Court. (Doc. 34.)
In its service Order, the Court provided instructions to Plaintiff regarding the prosecution
of this action. (Doc. 28, pp. 25–27.) The Court instructed Plaintiff that, if he “does not press his
case forward, the Court may dismiss it for want of prosecution.” (Id. at p. 26.) 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 27.) 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.)
Defendants filed a Motion to Dismiss all claims against them on March 28, 2016.
(Doc. 57.) On April 11, 2016, the Court instructed Plaintiff to respond to Defendants’ Motion to
Dismiss within twenty-one days. (Doc. 58.) The Court again alerted Plaintiff that, should he fail
to respond to the Motion to Dismiss, the Court would presume he does not oppose the Motion.
(Id. at p. 3.) In addition, the Court provided Plaintiff with a copy of Federal Rules of Civil
Procedure 41 and 12 to ensure that he had full notice of the requirements of the Rules regarding
motions to dismiss. (Id.) Plaintiff’s Response to Defendants’ Motion to Dismiss was to be filed
on or before May 2, 2016. However, Plaintiff filed a Notice of Change of Address on May 2,
2016. (Doc. 60.) Out of an abundance of caution and to ensure Plaintiff received notice of
Defendants’ Motion to Dismiss, the Clerk of Court mailed to Plaintiff at his new address another
copy of this Court’s April 11, 2016, Order advising him of Defendants’ Motion to Dismiss and
his obligation to respond on August 26, 2016. (Dkt. Entry dated Aug. 26, 2016.) The Court has
received no notifications that any of its Orders or any other pleadings filed in this case have been
returned or otherwise were unable to reach Plaintiff.
Plaintiff has entirely failed to respond to Defendants’ Motion to Dismiss.
Plaintiff has not made any filings in this case since May 2, 2016. (Doc. 60.)
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to respond to Defendants’ Motion to Dismiss. For the reasons set
forth below, I RECOMMEND that the Court DISMISS Plaintiff’s claims and DENY him leave
to appeal in forma pauperis.
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,
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
repeatedly advised Plaintiff that his failure to respond to the Motion to Dismiss would result in dismissal
of this action.
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
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).
Despite having been advised of his obligation to respond to Defendants’ Motion to
Dismiss and the consequences for failing to respond on several occasions, Plaintiff has not filed
any opposition to Defendants’ Motion. Additionally, with Plaintiff not having taken any action
on this case for nearly five months, he has failed to diligently prosecute his claims.
Thus, I RECOMMEND the Court DISMISS Plaintiff’s Section 1983 Complaint,
(doc. 1), without prejudice for failure to prosecute and failure to follow this Court’s Orders,
DISMISS as moot Defendants’ Motion to Dismiss, and DIRECT the Clerk of Court to CLOSE
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.
§ 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,
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 and
failure to prosecute, 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
For the above-stated reasons, I RECOMMEND the Court DISMISS this action, without
prejudice, DISMISS as moot Defendants’ Motion to Dismiss, and DIRECT that the Clerk of
Court enter the appropriate judgment of dismissal and to CLOSE this case.
RECOMMEND that the Court DENY Plaintiff leave to proceed in forma pauperis on appeal
and DISMISS all pending Motions as moot.
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 pleading 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
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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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