Tolbert v. Johnson et al

Filing 47

REPORT AND RECOMMENDATIONS that the Court dismiss without prejudice Plaintiff's 1 Complaint, deny as moot Defendants' 41 MOTION for Summary Judgment and 43 MOTION for Summary Judgment, direct the Clerk of Court to close this case an d enter the appropriate judgment of dismissal, and deny Plaintiff leave to appeal in forma pauperis. (Objections to R&R due by 4/1/2020). ORDER directing service of this Report and Recommendation. Signed by Magistrate Judge Benjamin W. Cheesbro on 03/18/2020. (MG)

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

DANIEL H. TOLBERT,
Plaintiff,

FILED
Scott L. Poff, Clerk
United States District Court

By mgarcia at 8:46 am, Mar 18, 2020

CIVIL ACTION NO.: 5:18-cv-36

v.
A. JOHNSON, et al.,
Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
November 8, 2019 Order. Doc. 36. For the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s
Order and failure to prosecute, DENY as moot Defendants’ Motions for Summary Judgment,
docs. 41, 43, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to appeal in
forma pauperis. 1

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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 quotations marks omitted). A magistrate judge’s report and recommendation
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 report and recommendation served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due
to be dismissed. As indicated below, Plaintiff 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, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation

BACKGROUND
On April 18, 2018, Plaintiff, proceeding pro se, filed a Complaint alleging Defendants
violated his constitutional rights. Doc. 1. Plaintiff moved to proceed in forma pauperis, which
the Court granted, and later directed Plaintiff to pay the requisite filing fee in monthly
installments. Docs. 3, 6. Plaintiff paid a portion of the requisite filing fee. Plaintiff then notified
the Court he had been released from incarceration, doc. 7, and paid more toward the filing fee.
The Court ordered service of Plaintiff’s Complaint on April 30, 2019. Doc. 8. On September
25, 2019, the Court advised Plaintiff he was still obligated to pay the remainder of the $350.00
filing fee, or $204.00, and offered him the option of paying in full the remaining filing fee or to
once again move to proceed in forma pauperis within 21 days of the Court’s Order. Doc. 33.
Plaintiff moved to proceed in forma pauperis. Doc. 34. In the Order granting Plaintiff in forma
pauperis status after his release from prison, the Court directed Plaintiff to pay the remaining
balance in $20.40 installments to begin 120 days of the November 8, 2019 Order, or until March
9, 2020. Doc. 36. The Court warned Plaintiff his failure to comply with the Order could “result
in the dismissal of his cause of action.” Id. Plaintiff has not responded to the Court’s November
8, 2019 Order, nor has he filed anything since moving to proceed in forma pauperis on October
3, 2019. Doc. 34.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without
prejudice Plaintiff’s Complaint and DENY Plaintiff leave to appeal in forma pauperis.

constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond).
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I.

Dismissal for Failure to Follow this Court’s Order and Failure to Prosecute
A district court may dismiss a plaintiff’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. 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 plaintiff’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. 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,

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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. Nonetheless, in the case at hand, the
Court advised Plaintiff that his failure to comply with the Court’s Order could result in dismissal of this
action. Doc. 36. In addition, Plaintiff was directed to respond to the summary judgment motions and was
advised of the consequences of failing to respond. Docs. 42, 44. The Court notes this as further
illustration of Plaintiff’s failure to prosecute this action.
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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 § 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 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 § 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 Plaintiff having neither paid the remaining portion of his filing fee nor having filed
anything in this case in more than five months’ time, the Court cannot move forward with this
case. See 28 U.S.C. §§ 1914 & 1915. Moreover, Plaintiff was given notice of the consequences
of his failure to follow the Court’s Order, and Plaintiff has not made any effort to do so or to
otherwise prosecute this case. Thus, the Court should DISMISS without prejudice Plaintiff’s
Complaint, doc.1, for failure to follow this Court’s Order and failure to prosecute and DIRECT
the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

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II.

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

has 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. 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. County 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 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 Plaintiff’s failure to follow this Court’s directives, 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 Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s Order and failure to prosecute,
DENY as moot Defendants’ Motions for Summary Judgment, and DIRECT the Clerk of Court

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to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND
the Court DENY Plaintiff leave to appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within 14 days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. 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 by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of March,
2020.

_____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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