De Varona v. U.S. Attorney General et al

Filing 12

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice this action for Petitioner's failure to prosecute re: 1 Petition for Writ of Habeas Corpus. It is further RECOMMENDED that the Court DENY Petitioner 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 1/26/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2018. (csr)

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

ENRIQUE DE VARONA,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-160

v.
U.S. ATTORNEY GENERAL JEFF
SESSIONS, et al.,
Respondents.

ORDER and MAGISTRATE JUDGE’S 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 the Court DISMISS without prejudice this action for Petitioner’s failure
to prosecute. I further RECOMMEND that the Court DENY Petitioner leave to appeal in forma
pauperis.
BACKGROUND
On November 2, 2017, Petitioner proceeding pro se, filed a Petition pursuant to 28
U.S.C. § 2241 in the Southern District of Florida. (Doc. 1.) On November 22, 2017, the
Southern District of Florida transferred this action to this Court because Petitioner was
incarcerated at Folkston Processing Center in Folkston, Georgia which is located in this District.
(Doc. 8.) On November 27, 2017, this Court mailed a Notice of Case Transfer to Petitioner at
his last known place of residence, D. Ray James. (Doc. 10.) However, the mail was returned
undeliverable because Petitioner is no longer at the Prison. (Doc. 11.) 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 November 2, 2017.
DISCUSSION
The Court must now determine how to address Petitioner’s failure 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.
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.
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)).
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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.
2

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.

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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
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

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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 has been given ample time to notify this Court of
his whereabouts, and Petitioner has not made any effort to do so. Indeed, he has not taken any
action in this case in over two months. Accordingly, 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
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). An in forma pauperis action is frivolous, and thus

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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.
CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS without
prejudice this action 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.
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

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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 12th day of January, 2018.

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

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