Herrera v. Federal Bureau of Prisons

Filing 14

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 Jorg e Herrera. It is further RECOMMENDED that the Court DENY Petitioner leave to proceed in forma pauperis on appeal. 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 10/20/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/6/2017. (ca)

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

JORGE HERRERA,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-111

v.
FEDERAL BUREAU OF PRISONS,
Respondent.

ORDER and REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to comply with the Court’s
Order to keep the Court apprised of any change in his address. For the following reasons, I
RECOMMEND that Petitioner’s Petition, (doc. 1), be DISMISSED without prejudice for
Petitioner’s failure to prosecute and failure to follow the Court’s Order.

I further

RECOMMEND that Petitioner be denied leave to appeal in forma pauperis.
BACKGROUND
On July 10, 2017, Petitioner, proceeding pro se, filed a Petition pursuant to 28 U.S.C. §
2241 in the Southern District of Florida. (Doc. 1.) Though Petitioner initially failed to pay the
$5.00 filing fee, he did so on July 25, 2017. (Doc. 7.) On July 13, 2017, United States
Magistrate Judge Patrick A. White of the Southern District of Florida issued an Order of
instructions to Petitioner. (Doc. 3.) Among other things, Judge White instructed Petitioner to
advise the Court in writing of any change in Petitioner’s address. (Id. at p. 2.) The Order

explained to Petitioner that his failure to notify the Court of any change in his address may result
in dismissal of his case for lack of prosecution. Id.
On August 28, 2017, the Southern District of Florida transferred this action to this Court
because Petitioner was incarcerated at D. Ray James Correctional Facility in Folkston, Georgia,
which is located in this District. (Doc. 9.) On August 30, 2017, this Court mailed a Notice of
Case Transfer to Petitioner at his last known place of residence, D. Ray James. (Doc. 12.)
However, the mail was returned undeliverable because Petitioner is no longer at the Prison.
(Doc. 13.) Petitioner has not notified the Court of his change of address or made any effort to
inform the Court of his whereabouts. Indeed, Petitioner has not taken any action in this case
since July 25, 2017.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to comply with the
Southern District of Florida’s Court’s directive to keep the court apprised of any changes in his
address. For the reasons set forth below, I recommend that the Petitioner be dismissed and that
Petitioner be denied leave to appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Failure to Follow a Court Order.
A district court may dismiss a Petitioner’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. 1 Link v. Wabash Railroad Company, 370 U.S. 626 (1962); 2 Coleman v. St. Lucie Cty.

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Pursuant to Rule 12 of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure
may apply to a Petitioner’s habeas Petition to the extent the Civil Rules are not inconsistent with the
Section 2254 Rules. Further, pursuant to Rule 1(b) of the 2254 Rules, the 2254 Rules may be applied to
Section 2241 Petitions.

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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. Tallahasse 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

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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, here, Petitioner was apprised that
his failure to update the court of a change in his address would result in dismissal of his Petition.

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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 Petitioner 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
Petitioners 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 Petitioner failed to follow court order to file amended complaint and
court had informed Petitioner that noncompliance could lead to dismissal). With Petitioner
having failed to update the Court with his current address, the Court has no means by which it
can communicate with Petitioner. Thus, the Court is unable to move forward with this case.
Moreover, Petitioner was given ample time to follow the Southern District of Florida’s directive,
and Petitioner has not made any effort to do so. Indeed, he has not taken any action in this case
in over two months. Thus, the Court should DISMISS without prejudice Petitioner’s Section
2241 Petition.
II.

Leave to Appeal in Forma Pauperis.
The Court should also DENY Petitioner leave to appeal in forma pauperis. Though

Petitioner has, of course, not yet filed a notice of appeal, it is proper to address these issues in the

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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. Cnty. 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 Petitioner’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
Petitioner in forma pauperis status on appeal should.
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 Petitioner
leave to proceed in forma pauperis on appeal.

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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. 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.
§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).

See 28 U.S.C.

Objections to a Report and

Recommendation are not the proper vehicle to raise issues and arguments not previously brought
before the Court. 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.
SO REPORTED and RECOMMENDED, this 6th day of October, 2017.

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

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