Randolph v. Gramiak et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 5 Amended Complaint for failure to follow this Court's Order and for failure to prosecute and DISMISS as moot Plaintiff's 2 M OTION for Emergency Injunction. It is further RECOMMENDED the Court to DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis. The Court ORDERS any party seeking to ob ject 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. (Objections to R&R due by 3/23/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/9/2018. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JOSHUA BRIAN RANDOLPH,
CIVIL ACTION NO.: 5:17-cv-40
WARDEN TOM GRAMIAK; EDWINA
JOHNSON; CHAPLAIN FLYNN; and
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Ware State Prison in Waycross, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement.
(Doc. 1.) Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis and a Motion for
Emergency Injunction along with his Complaint. (Docs. 2, 3.) For the reasons set forth below, I
RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint for failure to
follow this Court’s Order and for failure to prosecute and DISMISS as moot Plaintiff’s Motion
for Emergency Injunction, (doc. 2). Additionally, I RECOMMEND the Court to 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.
Plaintiff filed his Complaint and Motion for Leave to Proceed in Forma Pauperis on
April 21, 2017. (Docs. 1, 3.) Additionally, Plaintiff filed a Motion for Emergency Injunction.
(Doc. 2.) On May 11, 2017, the Court deferred ruling on Plaintiff’s in forma pauperis Motion
and directed Plaintiff to file an Amended Complaint using the proper Section 1983 form by June
1, 2017. (Doc. 4.) Plaintiff then timely filed his Amended Complaint, (doc. 5), and the Court
granted his Motion to Proceed in Forma Pauperis, (doc. 6). In that Order, the Court directed
Plaintiff to properly complete and sign the attached Prisoner Trust Fund Account Statement and
Consent to Collection of Fees from Trust Account forms by September 25, 2017, warning
Plaintiff that the Court would “dismiss [his] case without prejudice for failure to prosecute and
follow this Court’s Orders.” (Id. at pp. 3–4.)
On September 29, 2017, Plaintiff filed a Notice of Intent to Prosecute. (Doc. 7.) In light
of Plaintiff’s Notice, the Court declined to dismiss his case at that time pursuant to the
aforementioned warning. The Court allowed Plaintiff over 115 days to continue prosecuting his
case by properly completing and returning the required forms, but Plaintiff failed to take any
action in his case during time. On January 26, 2018, the Court ordered Plaintiff to complete the
required forms by February 26, 2018, and warned Plaintiff that, should he fail to timely return
the forms, “the Court will presume [he] does not intend to pursue this action and will dismiss this
case without prejudice.” (Doc. 8.) Plaintiff has yet to submit the required forms.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a complaint on an application to proceed in forma pauperis. See Fed.
R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).
Dismissal for Failure to Prosecute and Failure to Follow this Court’s Orders
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.
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.
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).
This Court issued an Order directing Plaintiff to complete and return his required Trust
Fund Account Statement and Consent to Collection of Fees from Trust Account forms, and
provided the necessary form to properly do so. (Doc. 8.) Since that time, Plaintiff has not filed
the required in forma pauperis forms, despite this Court’s multiple warnings that failure to do so
could result in dismissal. (Docs. 6, 8.) Indeed, Plaintiff has failed to diligently prosecute his
claims, as he has not taken any action pursuant to this case since filing his Notice of Intent to
Prosecute on September 29, 2017, over 150 days ago. (Doc. 7.) Moreover, Plaintiff has not
even attempted to timely comply with the Court’s directive to file his required forms, despite
being granted an additional thirty-day extension of time in which to do so after the Court had
already allowed him extra time following his Notice. (Doc. 8.)
Accordingly, the Court should DISMISS without prejudice Plaintiff’s Complaint and
DISMISS as moot Plaintiff’s Motion for an Emergency Injunction for his failure to prosecute
and failure to follow this Court’s Order.
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 these
issues in the Court’s order of dismissal. 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 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
A certificate of appealability is not required in this Section 1983 action.
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 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.
For the foregoing reasons, I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s Complaint for failure to follow this Court’s Order and for failure to prosecute and
DISMISS as moot Plaintiff’s Motion for Emergency Injunction, (doc. 2).
RECOMMEND the Court to 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.
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 9th day of March,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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