Vitto v. Gramiak et al

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice for Plaintiff's failure to follow this Court's Orders and failure to prosecute, DISMISS as moot Plaintiff's [ 3] MOTION for Emergency Injunction and 8 MOTION for Injunction, and DIRECT the Clerk of Court to CLOSE this case. It is further RECOMMENDED that the Court DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this Repor t 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 5/31/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/17/2017. (csr)

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

JUSTIN VITTO,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-109

v.
TOM GRAMIAK, ET AL., individually and in
their official capacities,
Defendants.

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 March 24, 2017, to file an appropriate Amended Complaint. (Doc. 9.) For the reasons
set forth below, I RECOMMEND the Court DISMISS Plaintiff’s Complaint, (doc. 1), without
prejudice for Plaintiff’s failure to follow this Court’s Orders and failure to prosecute, DISMISS
as moot Plaintiff’s Motion for Emergency Injunction and Motion for Injunction, (docs. 3, 8), and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY
Plaintiff leave to appeal in forma pauperis.
BACKGROUND
In his Complaint, Plaintiff listed twenty-five (25) individuals as Defendants and
contended these Defendants violated his constitutional rights. (Doc. 1.) Specifically, Plaintiff
asserted Defendants stalked him and his material witness, Charles Harris. Plaintiff also asserted
Defendants threatened to harm him due to grievances he filed and Plaintiff having warned
Defendants he would file a federal lawsuit against them. (Id. at p. 5.) Plaintiff contended
Defendants tried to prevent him from filing a lawsuit. Plaintiff alleged Defendants denied him

access to heat during cold weather, access to the law library, and access to the JPay kiosk.
Plaintiff stated that Defendants were “stalking” his “grievances and legal mail to try to violate
and suppress [his] freedom of speech to unlawfully deny access to court[.]” (Id.) In addition,
Plaintiff stated “all defendants” have conspired to kill him. (Id.) Plaintiff averred Defendant
John Doe poisoned his and his material witness’ food trays in an effort to kill Plaintiff and his
material witness.
The Court advised Plaintiff that the claims he set forth were not related to each other and
that he could not join these claims in one action unless he showed that his claims arose from “the
same transaction or occurrence or series of related transactions or occurrences[.]” (Doc. 9, p. 4
(quoting Fed. R. Civ. P. 20(a).) In addition, the Court informed Plaintiff that his Complaint was
“a quintessential ‘shotgun pleading’ which the Eleventh Circuit Court of Appeals and this Court
do not permit.” (Id. (quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54
(11th Cir. 2008).). The Court instructed Plaintiff as to how he should amend his Complaint and
cautioned him that, should he fail to file an appropriate Amended Complaint, his cause of action
would be dismissed for failure to prosecute and failure to follow this Court’s Orders. (Id. at
pp. 4–5.) The Court mailed that Order to Plaintiff at the most recent address it has for him, and
the Order was not returned to the Court as undeliverable or as otherwise failing to reach Plaintiff.
The Court has not received any pleading from Plaintiff since he filed a Motion for Injunction on
January 13, 2017. (Doc. 8.)
DISCUSSION
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 the Court DISMISS
Plaintiff’s Complaint without prejudice and DENY Plaintiff leave to appeal in forma pauperis.

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I.

Dismissal for Failure to Prosecute and 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); 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 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.

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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. However, in this case, Plaintiff was
forewarned that his failure to file an appropriate Amended Complaint could result in the dismissal of his
cause of action for failure to prosecute and failure to follow this Court’s Orders. (Doc. 9, p. 5.)
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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). With Plaintiff having
failed to file an Amended Complaint setting forth claims that arose from the same transaction or
occurrence or series of related transactions or occurrences, the Court is unable to move forward
with this case. Additionally, Plaintiff was given ample time to follow the Court’s directive, and
Plaintiff has not made any effort to do so or to inform the Court as to why he cannot comply with
its directives. Indeed, Plaintiff has not taken any action in this case in four months’ time.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
(doc. 1), for failure to prosecute and failure to follow this Court’s Order and DIRECT the Clerk
of Court to CLOSE this case.

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II.

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
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).
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.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this action
without prejudice, DISMISS as moot Plaintiff’s Motion for Emergency Injunction and Motion

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for Injunction, (docs. 3, 8), 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.
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 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
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 17th day of May,
2017.

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

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