Wittrien v. Jodi et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's Complaint, as amended, (docs. 1 , 4 ), for failure to prosecute and to follow this Court's Order. It is also RECOMMENDED that the Co urt DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation is ordered to file specific written o bjections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 12/6/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 11/22/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
LUIS ANTHONY WITTRIEN,
CIVIL ACTION NO.: 5:17-cv-19
NURSE PRACTITIONER FNU JODI, et al.,
in their individual capacities,
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 September 25, 2017. (Doc. 6.) For the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff’s Complaint, as amended, (docs. 1, 4), for failure to
prosecute and to follow this Court’s Order. I also RECOMMEND the Court DIRECT the
Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY
Plaintiff leave to appeal in forma pauperis.
On February 1, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement at the Coffee County Jail in Douglas, Georgia.
However, the Court deferred ruling on Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis and conducting the requisite frivolity review of Plaintiff’s Complaint because Plaintiff
failed to set forth grounds for relief in his original Complaint. (Doc. 3, p. 4.) The Court directed
Plaintiff to amend his Complaint and provided specific instructions as to how to amend his
Complaint. (Id.) Plaintiff then filed an Amended Complaint in response to this Court’s Order.
On September 25, 2017, the Court granted Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis. (Doc. 6.) In this Order, the Court advised Plaintiff that he “must return both”
the Prisoner Trust Account Statement and the Consent to Collection of Fees From Trust Account
forms to the Clerk of Court within thirty (30) days. (Id. at p. 3.) The Court warned Plaintiff that
his failure to respond to the Court’s Order within thirty (30) days, or by October 25, 2017, would
result in the dismissal of his case without prejudice for failure to prosecute and follow this
Court’s Order. (Id. at p. 4.) That mailing was not returned as undeliverable or as otherwise
failing to reach Plaintiff. Plaintiff has not taken any action in response to this Order. Indeed,
Plaintiff has not made any filings in this case since March 24, 2017.
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order and failure to prosecute. For the reasons set forth below, I RECOMMEND the
Court DISMISS without prejudice Plaintiff’s Complaint and DENY Plaintiff leave to appeal in
Dismissal for Failure to Prosecute and 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
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 Plaintiff that his failure to respond to this Court’s Order would result in dismissal of this action.
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.
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 provide the Court with the requisite forms for a prisoner-plaintiff proceeding in forma
pauperis, the Court cannot proceed in this case. See 28 U.S.C. §§ 1914 & 1915. Moreover,
Plaintiff was given ample notice of the consequences for his failure to follow the Court’s Order,
and Plaintiff has not made any effort to do so or to otherwise prosecute this case.
Thus, the Court should DISMISS Plaintiff’s Section 1983 Complaint, as amended,
(docs. 1, 4), without prejudice for failure to prosecute and failure to follow this Court’s Order
and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2
Plaintiff 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 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, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith.
A certificate of appealability is not required in this Section 1983 action.
§ 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).
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 failure to follow this Court’s Order 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 Plaintiff in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND the Court DISMISS Plaintiff’s
Complaint, as amended, (docs. 1, 4), without prejudice for failure to prosecute and failure to
follow this Court’s Order and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff 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 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. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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