Tobon v. Johns et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Tobon's 2 Petition without prejudice for failure to follow the Court's directives and failure to prosecute and DISMISS as moot all pending Motions. It is further R ECOMMENDED that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Tobon 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 3/20/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/6/2018. (csr) Modified on 3/6/2018 (csr).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JUAN GUILLERMO TOBON,
CIVIL ACTION NO.: 5:17-cv-117
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Petitioner Juan Tobon’s (“Tobon”) failure to
comply with the Court’s Orders of September 29, 2017, (doc. 10), and January 22, 2018,
(doc. 16), and his failure to prosecute this action. For the following reasons, I RECOMMEND
the Court DISMISS Tobon’s Petition without prejudice for failure to follow the Court’s
directives and failure to prosecute and DISMISS as moot all pending Motions. 1 I further
RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal and DENY Tobon leave to appeal in forma pauperis.
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 R&R constitutes fair notice to Tobon that his suit is due to be dismissed. As
indicated below, Tobon will have the opportunity to present his objections to this finding, and the
presiding district judge 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-CV-3562-TWT-JFK, 2012 WL 5930633, at *1
(N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s R&R constituted adequate notice and
petitioner’s opportunity to file objections provided a reasonable opportunity to respond).
On August 2, 2017, Tobon filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 in the Middle District of Alabama, while he was housed at the D. Ray James
Correctional Institution in Folkston, Georgia. (Doc. 2.) After Tobon’s Petition was transferred
on September 1, 2017, this Court directed service on September 29, 2017, and ordered Tobon to
“immediately inform this Court in writing of any change of address. Failure to do so will result
in dismissal of this case.” (Doc. 10, p. 2.) Respondent filed a Response on October 19, 2017.
(Doc. 15.) On January 22, 2018, the Court issued an Order stating that “Respondent’s arguments
amount to a motion to dismiss the Petition” and directed Tobon to file any objections to
Respondent’s Response within fourteen (14) days of the Court’s Order. (Doc. 16, p. 1.) The
Court specifically advised Tobon that, if he failed to respond, the Court would presume that he
does not oppose dismissal of this action and would dismiss this case. (Id. at p. 2.) Despite these
warnings, Tobon has entirely failed to notify the Court of his change of address or to file an
appropriate response to the Court’s January 22, 2018, Order. Tobon’s mail was returned as
undeliverable, (doc. 17), and he has not made any filing in this case since he paid the requisite
filing fee on September 28, 2017.
The Court must now determine how to address Tobon’s failure to comply with this
Court’s Orders and failure to prosecute this action.
For the reasons set forth below, I
RECOMMEND that the Court DISMISS Tobon’s Petition without prejudice 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 Tobon that his failure to respond to this Court’s Order and Respondent’s filing would result in
dismissal of this action. (Doc. 16.)
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
Tobon has not filed any opposition to Respondent’s request for dismissal, despite the
Court specifically directing Tobon to do so and advising him of the consequences for failing to
respond. In fact, Tobon has failed to diligently prosecute his claims, as he has not taken any
action in this case for five months’ time. Additionally, Tobon has failed to update the Court with
his current address, despite the Court’s instruction to him regarding this obligation. (Doc. 10,
p. 2.) The Court has no means by which it can communicate with Tobon and is unable to move
forward with this case.
Thus, the Court should DISMISS without prejudice Tobon’s Section 2241 Petition,
Leave to Appeal in Forma Pauperis
The Court should also deny Tobon leave to appeal in forma pauperis. Though Tobon
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 Tobon’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 Tobon in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
Tobon’s 28 U.S.C. § 2241 Petition, DISMISS as moot all pending Motions, and DIRECT the
Clerk of Court to CLOSE this case and to enter the appropriate judgment of dismissal. I also
RECOMMEND the Court DENY Tobon 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 Tobon and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 6th day of March,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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