Trejo v. Federal Bureau of Prisons
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Trejo's 1 Petition for failure to follow the Court's directive and failure to prosecute and DISMISS as moot all pending Motions. It is further R ECOMMENDED that the Court DENY Trejo 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)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
EMIGDIO NOLASQUEZ TREJO,
CIVIL ACTION NO.: 5:17-cv-129
WARDEN TRACY JOHNS,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Petitioner Emigdio Trejo’s (“Trejo”) failure to
comply with the Court’s Order of December 20, 2017, (doc. 11), and his failure to prosecute this
For the following reasons, I RECOMMEND that the Court DISMISS without
prejudice Trejo’s action for failure to follow the Court’s directive and failure to prosecute 1 and
DISMISS as moot all pending Motions. I further RECOMMEND that the Court DENY Trejo
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 Trejo that his suit is due to be dismissed. As
indicated below, Trejo 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 report and recommendation constituted
adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to
On September 27, 2017, Trejo, who is currently housed at D. Ray James Correctional
Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1.) Respondent filed a Motion to Dismiss on December 6, 2017. (Doc. 9.) On
December 20, 2017, the Court issued an Order directing Trejo to file any objections to
Respondent’s Motion to Dismiss within fourteen (14) days. (Doc. 11.) The Court specifically
advised Trejo that, if he failed to respond, the Court would presume that he does not oppose
dismissal of this action. (Id.) Despite this warning, Trejo has entirely failed to respond to
Respondent’s Motion to Dismiss. Indeed, Trejo has not taken any action in this case since
November 16, 2017. (Doc. 8.)
The Court must now determine how to address Trejo’s failure to comply with this Court’s
Order, his failure to respond to Respondent’s Motion to Dismiss, and his failure to prosecute this
action. For the reasons set forth below, I RECOMMEND that the Court DISMISS without
prejudice Trejo’s Petition 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. 2 Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 3 Coleman v. St. Lucie Cty.
Pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases, the Section 2254 Rules may be
applied to Section 2241 petitions. Additionally, pursuant to Rule 12 of the Section 2254 Rules, the
Federal Rules of Civil Procedure may apply to a habeas petition, to the extent the Civil Rules are not
inconsistent with the Section 2254 Rules.
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
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,
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
advised Plaintiff that his failure to respond to the Motion to Dismiss would result in dismissal of this
action. (Doc. 11.)
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, Trejo has not filed any opposition to
Respondent’s Motion. Additionally, with Trejo not having taken any action in this case for
nearly four months, he has failed to diligently prosecute his claims.
Thus, the Court should DISMISS without prejudice Trejo’s Section 2241 Petition,
(doc. 1), for failure to follow this Court’s directives and for failure to prosecute.
Leave to Appeal in Forma Pauperis
The Court should also deny Trejo leave to appeal in forma pauperis. Though Trejo 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). 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.
Based on the above analysis of Trejo’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 Trejo in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
Trejo’s 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 further RECOMMEND
the Court DENY Trejo 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 Trejo 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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