Harrington v. Warden Tracy Johns

Filing 23

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Petitioner's 1 Petition, without prejudice for his failure to prosecute and failure to follow this Court's Orders. I further RECOMMEND that the Court DENY Petition er leave to appeal in forma pauperis. 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 (Objections to R&R due by 4/25/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/11/2017. (ca)

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

FILED
Scott L. Poff, Clerk
United States District Court

By casbell at 11:19 am, Apr 11, 2017

CAMPBELL C. HARRINGTON,
Petitioner,

CIVIL ACTION NO.: 5:15-cv-71

v.
WARDEN TRACY JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to respond to Respondent’s
Motion to Dismiss. (Doc. 21.) Despite being instructed by the Court to respond to the Motion,
Petitioner has failed to file any response. Indeed, he has not taken any action in this case in
nearly two months. Therefore, I RECOMMEND that the Court DISMISS Petitioner’s Petition,
(doc. 1), without prejudice for his failure to prosecute and failure to follow this Court’s Rules. I
further RECOMMEND that the Court DENY Petitioner leave to appeal in forma pauperis.
BACKGROUND
Petitioner, who was formerly incarcerated at D. Ray James Correctional Facility, brought
this action pursuant to 28 U.S.C. § 2241 on September 8, 2015. (Doc. 1.) After the Court
ordered service of the Petition, Respondent filed a Motion to Dismiss on February 14, 2017.
(Doc. 21.) On February 28, 2017, the Court ordered Petitioner to respond to the Motion to
Dismiss within fourteen days. (Doc. 22.) The Court explained that if Petitioner failed to respond
to the Motion to Dismiss, the Court would dismiss this action. (Id.) Despite that clear warning,
Petitioner has failed to file any pleading in response to the Respondent’s Motion. Indeed,

Petitioner has not taken any action in this case since informing the Court of his change of address
nearly two months ago.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to follow this Court’s
Orders and his failure to prosecute this case. For the reasons set forth below, I recommend that
the Court dismiss the Petition and deny Petitioner leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Rules.
A district court may dismiss a petitioner’s claims 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 petitioner’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)).
1

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.
2

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). Petitioner has failed to
respond to the Motion to Dismiss despite having been served with the Motion and directed by the
Court to file a response. Furthermore, with Petitioner not having taken any action in this case in
nearly two months, he has failed to diligently prosecute his claims.

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Thus, Petitioner has

demonstrated a clear record of delay and disregard for this Court’s Orders, and a sanction other
than dismissal would not suffice to remedy his deficiencies.
For these reasons, the Court should DISMISS Petitioner’s Petition, (doc. 1), without
prejudice for failure to prosecute and failure to follow this Court’s Order, and CLOSE this case.
II.

Leave to Appeal in Forma Pauperis.
The Court should also deny Petitioner leave to appeal in forma pauperis.

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. 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.
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).

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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
Petitioner in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS Petitioner’s
Petition, (doc. 1), without prejudice for his failure to prosecute and failure to follow this Court’s
Orders. I further RECOMMEND that the Court DENY Petitioner leave to appeal in forma
pauperis.
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 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.
§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).

See 28 U.S.C.

Objections to a Report and

Recommendation are not the proper vehicle to raise issues and arguments not previously brought
before the Court. 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 part, the findings or recommendations made herein. Objections not meeting the
specificity requirement set out above will not be considered by the District Judge. The Clerk of

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Court shall serve a copy of this Order and Report and Recommendation on Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of April,
2017.

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

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