Green v. USA

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action, without prejudice, and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Christopher Green. I further RECOMMEND that the Court DENY Green leave to proceed in forma pauperis on appeal. Any party seeking to objection to this Report and Recommendation is ORDERED to file specific written objections within four teen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 11/2/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/19/2016. (ca)

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

CHRISTOPHER GREEN,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-50

v.
UNITED STATES OF AMERICA,

(Case No. 5:97-cr-3)

Respondent.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Petitioner Christopher Green’s (“Green”)
failure to comply with the Court’s Order of August 29, 2016, (doc. 4), and his failure to
prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS
Green’s action without prejudice for failure to follow the Court’s directive and failure to
prosecute.1 Additionally, the Court should DENY Green leave to proceed on appeal in forma
pauperis.

A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotation marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. Of Elec. Workers
Local Union, 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK,
2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
1

BACKGROUND
On July 1, 2016, Green, who is currently housed at the Federal Correctional Institution in
Pekin, Illinois, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. (Doc.
1.) Respondent filed a Motion to Dismiss on August 10, 2016. (Doc. 3.) On August 29, 2016,
the Court issued an Order directing Green to file any objections to Respondent’s Motion to
Dismiss within twenty-one (21) days. (Doc. 4.) The Court specifically advised Green that if he
failed to respond, the Court would presume that he does not oppose dismissal of this action. (Id.)
Despite this warning, Green has failed to respond to Respondent’s Motion to Dismiss. Indeed,
Green has not made any filings in this case since July 1, 2016. (Doc. 1.)
DISCUSSION
The Court must now determine how to address Green’s failure to comply with this
Court’s Orders and his failure to respond to Respondent’s Motion to Dismiss. For the reasons
set forth below, I RECOMMEND that the Court DISMISS Green’s Petition and 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 petitioner’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);2 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

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 Petitioner that his failure to respond to the Motion to Dismiss would result in dismissal of this
action. (Doc. 4.)
2

2

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, where plaintiff did not respond to court order to supply

3

defendant’s current address for purpose of service); 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 advised of his obligation to respond to Respondent’s Motion to
Dismiss and the consequences for failing to respond, Green has not filed any opposition to
Respondent’s Motion. Additionally, with Green not having taken any action in this case for
nearly three months, he has failed to diligently prosecute his claims.
Thus, the Court should DISMISS Green’s Section 2255 Petition, (doc. 1), without
prejudice, 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 Green leave to appeal in forma pauperis. Though Green 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. Civ. 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.

4

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 Green’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 Green in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this action,
without prejudice, 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 Green leave
to proceed in forma pauperis on appeal.
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. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint 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

5

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 Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of October,
2016.

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

6