Woldemichael v. Simon
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 Petition for Writ of Habeas Corpus filed by T esfai Woldu Woldemichael. It is further RECOMMENDED that the Court DENY Woldemichael 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 with in fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 10/11/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/27/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
TESFAI WOLDU WOLDEMICHAEL,
CIVIL ACTION NO.: 5:17-cv-44
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Petitioner Tesfai Woldu Woldemichael’s
(“Woldemichael”) failure to comply with the Court’s Orders of May 23, 2017, (doc. 2), and
August 14, 2017, (doc. 12), and his failure to prosecute this action. For the following reasons, I
RECOMMEND the Court DISMISS Woldemichael’s Petition without prejudice for failure to
follow the Court’s directive and failure to prosecute and DISMISS as moot all other pending
Motions. 1 I further RECOMMEND that the Court DIRECT the Clerk of Court to enter the
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 Woldemichael that his suit
is barred and due to be dismissed. As indicated below, Woldemichael 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-CV3562-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).
appropriate judgment of dismissal and CLOSE this case and DENY Woldemichael leave to
appeal in forma pauperis.
On May 3 2017, Woldemichael, who is currently housed at the Folkston Immigration and
Customs Enforcement (“ICE”) Processing Center, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1.) The Court directed service on May 23, 2017, and
ordered Woldemichael to “immediately inform this Court in writing of any change of address.
Failure to do so will result in dismissal of this case, without prejudice.”
(Doc. 2, p. 2.)
Respondent filed a Motion to Dismiss on July 25, 2017. (Doc. 11.) On August 14, 2017, the
Court issued an Order directing Woldemichael to file any objections to Respondent’s Motion to
Dismiss within fourteen (14) days. (Doc. 12.) The Court specifically advised Woldemichael
that, if he failed to respond, the Court would presume that he does not oppose dismissal of this
action. (Id.) Despite these warnings, Woldemichael has entirely failed to notify the Court of his
change of address or respond to Respondent’s Motion to Dismiss. Woldemichael’s mail was
returned as undeliverable because he was no longer at the processing center, (doc. 13), and he
has not made any filing in this case since July 14, 2017, (doc. 10).
The Court must now determine how to address Woldemichael’s failure to comply with
this Court’s Orders, his failure to respond to Respondent’s Motion to Dismiss, and failure to
prosecute this action.
For the reasons set forth below, I RECOMMEND that the Court
DISMISS Woldemichael’s claims and DENY him leave to appeal in forma pauperis.
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
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.
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,
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 Woldemichael that his failure to respond to the Motion to Dismiss would result in dismissal of
this action. (Doc. 12.)
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
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
Despite having been advised of his obligation to respond to Respondent’s Motion to
Dismiss and the consequences for failing to respond, Woldemichael has not filed any opposition
to Respondent’s Motion. In fact, Woldemichael has failed to diligently prosecute his claims—he
has not taken any action in this case for over three months. Additionally, Woldemichael has
failed to update the Court with his current address, despite the Court’s instruction to him
regarding this obligation. (Doc. 2, p. 2.) The Court has no means by which it can communicate
with Woldemichael and is unable to move forward with this case.
Thus, the Court should DISMISS Woldemichael’s Section 2241 Petition, (doc. 1),
Leave to Appeal in Forma Pauperis
The Court should also deny Woldemichael leave to appeal in forma pauperis. Though
Woldemichael 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.
§ 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 Woldemichael’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 Woldemichael in forma pauperis
status on appeal.
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
Woldemichael 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 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.
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.
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. The Court DIRECTS the Clerk of Court to serve a copy of this Report
and Recommendation upon Woldemichael and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 27th day of September,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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