Di v. Moore

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Di's 1 Petition, without prejudice and DIRECT the Clerk of Court to CLOSE this case. It is further RECOMMENDED that the Court DENY Di leave to appeal in forma pauperis . 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 7/25/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/11/2017. (csr)

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

LI CHUAN DI,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-59

v.
MICHAEL MOORE,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner Li Chuan Di’s (“Di”) failure to comply
with the Court’s Order of May 22, 2017, to re-submit his application to proceed in forma
pauperis on the Court’s preferred forms.

(Doc. 3.)

For the following reasons, I

RECOMMEND the Court DISMISS Di’s Petition, (doc. 1), without prejudice for his failure to
follow this Court’s Orders and failure to prosecute and DIRECT the Clerk of Court to CLOSE
this case. I further RECOMMEND the Court DENY Di leave to appeal in forma pauperis. The
Court DISMISSES as moot Di’s Motion for Leave to Proceed in Forma Pauperis in this Court.
(Doc. 2.)
BACKGROUND
Di, who is housed at the Folkston ICE Processing Center in Folkston, Georgia, brought
this action pursuant to 28 U.S.C. § 2241 on May 17, 2017. (Doc.1.) Di also filed a Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.) On May 22, 2017, this Court deferred ruling on
Di’s Motion for Leave to Proceed in Forma Pauperis. (Doc. 3.) The Court directed Di to resubmit his application to proceed in forma pauperis on the Court’s preferred forms and directed

the Clerk of Court to provide Di with blank copies of those forms. (Id. at p. 1.) The Court
cautioned Di that, should he fail to comply with this Court’s directive in a timely manner, his
Petition could be dismissed, without prejudice. (Id.) The Court mailed that Order to Di 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 Di. The Court has not received any pleading from Di since that
Order. Indeed, Plaintiff has not taken any action in this case since he originally filed his Petition
and Motion to Proceed in Forma Pauperis.
DISCUSSION
The Court must now determine how to address Di’s failure to comply with this Court’s
directive. For the reasons set forth below, I RECOMMEND the Court DISMISS Di’s Petition
without prejudice, DIRECT the Clerk of Court to CLOSE this case, and DENY Di leave to
appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Order
A district court may dismiss 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 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.
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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. In this case, the Court forewarned Di that his
failure to comply with its Order may result in the dismissal of his Petition. (Doc. 3, p. 1.)
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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);

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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 Di having failed
to file a response to this Court’s Order, the Court is unable to move forward with this case.
Moreover, Di was given ample time to follow the Court’s directives, and Di has not made any
effort to do so or to inform the Court as to why he cannot comply with its directives. Indeed, Di
has not taken any action in this case since filing his Petition and Motion for Leave to Proceed in
Forma Pauperis on May 17, 2017.
Thus, I RECOMMEND the Court DISMISS without prejudice Di’s Petition, (doc. 1),
for failure to prosecute and failure to follow this Court’s Order and DIRECT the Clerk of Court
to CLOSE this case.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Di leave to appeal in forma pauperis. Though Di 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. Di, 490 U.S. 319, 327 (1989); Carroll v. Gross,

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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, 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 Di in forma pauperis
status on appeal.
CONCLUSION
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 Di leave to
proceed in forma pauperis on appeal. The Court DISMISSES as moot Di’s Motion for Leave to
Proceed in Forma Pauperis in this Court.
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

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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 Di.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of July, 2017.

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

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