Berry v. State
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 Complaint filed by Delwin Berry. I further r ecommend that the Court DENY Plaintiff 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 (Objections to R&R due by 10/4/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/20/2016. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:16-cv-72
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 August 23, 2016, to furnish the Court with his prison trust fund account statement.
(Doc. 4.) For the following reasons, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint, (doc. 1), without prejudice, for Plaintiff’s failure to follow this Court’s Orders. I
further RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis.
Plaintiff, an inmate at Ware State Prison in Waycross, Georgia, brought this action
pursuant to 42 U.S.C. § 1983 on August 19, 2016. (Doc. 1.) In addition to his Complaint,
Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis. (Doc. 2.) However, Plaintiff
failed to include within that Motion a certified copy of his prison trust fund account statement for
the 6-month period immediately preceding the filing of the action as required by 28 U.S.C. §
1915(a)(2). (Doc. 4, p. 1.) Accordingly, on August 23, 2016, the Court deferred ruling on
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis, provided him an additional a copy of
the Application to Proceed in District Court Without Prepaying Fees or Costs form, and
permitted Plaintiff fourteen (14) additional days to provide his prison trust account form. (Id.)
Though Plaintiff submitted another Application to Proceed without Prepayment of Fees form on
September 6, 2016, he did not include his prison trust fund account form as directed. In lieu of
providing the prison trust fund account form, Plaintiff submitted a document labeled “History of
Accounts.” (Doc. 5-1.) That document was created on July 5, 2016, prior to this Court’s Order
directing Plaintiff to provide his prison trust fund account form, (doc. 4), and does not include
any information regarding his prison trust fund account at Ware State Prison where he is
presently incarcerated. 1
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s directive. For the reasons set forth below, I recommend that the Court dismiss Plaintiff’s
Complaint and deny Plaintiff leave to appeal in forma pauperis.
Dismissal for Failure to Follow this Court’s Order.
A district court may dismiss a plaintiff’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); 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 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.
Though Plaintiff filed a letter, (doc. 6), in addition to his second Motion for Leave to Proceed In Forma
Pauperis, that letter does not appear to provide any explanation for Plaintiff’s failure to provide the
requisite information pertaining to his prison trust fund account. As best the Court can discern, Plaintiff
merely reasserts his prior arguments within that letter.
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.
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). As Plaintiff has failed
to provide the Court with his prison trust fund account statement, the Court has no means to
evaluate Plaintiff’s indigence or to collect the filing fees in this case as required by 28 U.S.C. §
1915(b)(1). Furthermore, Plaintiff’s continued failure to provide the proper form demonstrates a
disregard for this Court’s Orders, and a sanction other than dismissal would not suffice to
remedy his deficiencies.
Thus, the Court should DISMISS Plaintiff’s Complaint, (doc. 1), without prejudice, for
failure to follow this Court’s Order, and this case should be CLOSED.
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 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
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).
Based on the above analysis of Plaintiff’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
Plaintiff in forma pauperis status on appeal should.
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 Plaintiff 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 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.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of September,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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