Wright v. Williams

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Petitioner's 1 Petition for Writ of Habeas Corpus without prejudice for his failure to follow this Court's Orders and failure to prosecute. It is further RECOMM ENDED that the Court DENY Petitioner a certificate of appealability and DENY him leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation is ordered 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 7/25/2015). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/11/2016. (csr)

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

GEODONALD WRIGHT,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-43

v.
WARDEN DOUG WILLIAMS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to pay the filing fee associated
with this action and failure to comply with the Clerk of Court’s directive regarding the same.
(Doc. 4.) Because Petitioner has not submitted a filing fee or moved to proceed in forma
pauperis, I RECOMMEND that the Court DISMISS Petitioner’s Petition (doc. 1) without
prejudice for his failure to follow this Court’s Orders and failure to prosecute.

I further

RECOMMEND that the Court DENY Petitioner a certificate of appealability and DENY him
leave to appeal in forma pauperis.
BACKGROUND
Petitioner, an inmate at Smith State Prison in Glennville, Georgia, brought this action
pursuant to 28 U.S.C. § 2254 on June 2, 2016. (Doc. 1.) However, he did not provide the
requisite filing fee or file an application to proceed in forma pauperis. On June 2, 2016, the
Clerk of Court issued a Notice regarding Petitioner’s failure to pay the filing fee. (Doc. 3.) In
that Notice, the Clerk stated, “You must either pay the filing fee or submit a properly competed
‘Motion to Proceed In Forma Pauperis’ within 21 days from the date of this notice.” Id. The

Notice further advised Petitioner that if he did not comply with its directive, the Court may
dismiss his case. Id. The Court mailed that Notice to Petitioner at the most recent address it has
for him. Petitioner has not provided the filing fee or a motion to proceed in forma pauperis, and
the Court has not received any pleading from Petitioner since that Notice.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to comply with this
Court’s directive and his failure to prosecute this case. For the reasons set forth below, I
recommend that the Court dismiss the Petition and deny Petitioner a certificate of appealablity
and 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 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 Railroad Company, 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)).
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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, here, the Court provided notice
to Petitioner that his Petition could be dismissed.

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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)).
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

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court had informed plaintiff that noncompliance could lead to dismissal). With Petitioner having
failed to provide the Court with a filing fee or a motion to proceed in forma pauperis, the Court
has no means to collect the filing fees in this case or to assess Petitioner’s eligibility for in forma
pauperis status. Furthermore, with Petitioner not having taken any action in this case following
the Court’s Notice, he has failed to follow this Court’s Order and 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 would not suffice to remedy his
deficiencies.
For these reasons, the Court should DISMISS the Petition (doc. 1) without prejudice for
failure to prosecute and failure to follow this Court’s Order, and this case should be CLOSED.
II.

Denial of Leave to Appeal In Forma Pauperis and Certificate of Appealability.
The Court should also deny Petitioner leave to appeal in forma pauperis, and he should

be denied a Certificate of Appealability (“COA”). Though Petitioner has, of course, not yet filed
a notice of appeal, it would be appropriate to address these issues in the Court’s order of
dismissal. Rule 11 of the Rules Governing Section 2254 cases provides that the “district court
must issue or deny a certifiace3 of appealability when it enters a final order adverse to the
applicant.” See also, Thomas v. Crosby, 371 F.3d 782, 797 (11th Cir. 2004) (Tjoflat, J., specially
concurring) (“A district court may sua sponte grant or deny a COA at the same time it rules on
the merits of a habeas petition or rejects it on procedural grounds. This is arguably the best time
for a district judge to decide this matter because the issues are still fresh in [the district court’s]
mind.”); Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial
of COA before movant filed a notice of appeal); 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”).

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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. 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 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.”

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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, I discern no issues worthy of a certificate of appeal, and,
therefore, the Court should DENY 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 should likewise be DENIED.
CONCLUSION
For the above-stated reasons, it is my RECOMMENDATION that this action be
DISMISSED, 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 a certificate of appealablity and DENY him leave to proceed in forma pauperis on
appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation is
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.

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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 Court shall
serve a copy of this Order and Report and Recommendation on Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of July, 2016.

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

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