Ruiz v. Jones

Filing 3

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Petitioner's 1 Petition, without prejudice for his failure to follow this Court's directives and failure to prosecute and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. 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 objec tions within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 2/5/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/22/2018. (csr)

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

HENDER GOMEZ RUIZ,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-167

v.
TRACY JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to comply with the Court’s
December 18, 2017, directive to pay the required filing fee or to move to proceed in forma
pauperis. (Doc. 2.) For the reasons which follow, I RECOMMEND that the Court DISMISS
Petitioner’s Petition, (doc. 1), without prejudice for his failure to follow this Court’s directives
and failure to prosecute and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal. I further RECOMMEND that the Court DENY Petitioner
leave to appeal in forma pauperis.
BACKGROUND
Petitioner, an inmate at D. Ray James Correctional Institution in Folkston, Georgia,
brought this action pursuant to 28 U.S.C. § 2241 on December 18, 2017. (Doc. 1.) However,
Petitioner did not pay the $5.00 filing fee or move to proceed in forma pauperis. Thus, the Court
issued a Deficiency Notice advising Petitioner that he must pay the requisite filing fee or submit
a properly completed motion to proceed in forma pauperis within twenty-one (21) days from the

date of the Notice. (Doc. 2.) The Court mailed the Notice to Petitioner’s last known address at
D. Ray James in Folkston, Georgia, and attached to the Notice a form application to proceed in
forma pauperis. (Id.) The Notice was not returned as undeliverable or as otherwise failing to
reach Petitioner. However, Petitioner has not provided the required filing fee or moved to
proceed in forma pauperis. Indeed, he has not taken any action in this case since filing his
Petition.
DISCUSSION
The Court must now determine how to address Petitioner’s failure to comply with this
Court’s directive. For the reasons set forth below, I RECOMMEND that the Court DISMISS
without prejudice Petitioner’s Section 2241 Petition and DENY him 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 a petitioner 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

1

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, the Court advised Petitioner
that his failure to remedy his filing fee deficiency would result in the dismissal of his action. (Doc. 2.)

2

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. 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

3

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);
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 Petitioner failing
to provide the Court with a filing fee or moving to proceed in forma pauperis, the Court has no
means to collect the requisite filing fee in this case or to assess Petitioner’s eligibility for in
forma pauperis status. Furthermore, with Petitioner not having taken any action in this case
since the filing of his Petition, he has failed to diligently prosecute his claims. Thus, Petitioner
has demonstrated a clear record of delay and disregard for this Court’s directives, and a sanction
other than dismissal would not suffice to remedy his deficiencies.
For these reasons, the Court should DISMISS Petitioner’s Section 2241 Petition without
prejudice for failure to prosecute and failure to follow this Court’s directives.
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 would be appropriate to address these
issues in the Court’s order of dismissal. 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

4

(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).
Given the above analysis of Petitioner’s Petition, 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 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 the Court DENY Petitioner 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.
§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).

5

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. The Court
DIRECTS the Clerk of Court to serve a copy of this Order and Report and Recommendation on
Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of January,
2018.

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

6