Clervrain v. Johns

Filing 10

REPORT AND RECOMMENDATIONS that the Court DISMISS the 1 Complaint, without prejudice for Plaintiff's failure to follow this Court's Orders and failure to prosecute and DIRECT the Clerk of Court to CLOSE this case and ENTER the appropria te judgment of dismissal. It is further RECOMMENDED that the Court DENY Plaintiff 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) da ys of the date on which this Report and Recommendation is entered. (Objections to R&R due by 2/18/2019). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge Benjamin W. Cheesbro on 2/4/2019. (csr)

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

MANETIRONY CLERVRAIN,
Plaintiff,

CIVIL ACTION NO.: 5:18-cv-38

v.
TRACEY JONES,
Defendant.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with this Court’s
December 6, 2018 Order to amend his Complaint. Doc. 9. For the following reasons, I
RECOMMEND the Court DISMISS the Complaint, doc. 1, without prejudice for Plaintiff’s
failure to follow this Court’s Orders and failure to prosecute 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.
BACKGROUND
On April 27, 2018, Plaintiff, while incarcerated at the D. Ray James Correctional Facility
in Folkston, Georgia, filed this action to challenge the conditions of his confinement. Doc. 1.
Plaintiff filed a motion to proceed in forma pauperis the same day. Doc. 2. On April 30, 2018,
Plaintiff filed a second motion to proceed in forma pauperis, and on July 9, 2018, he filed a third
motion to proceed in forma pauperis along with an inmate account statement. Docs. 4, 5, 6, 7.
On December 6, 2018, this Court deferred ruling on Plaintiff’s first motion to proceed in
forma pauperis and dismissed the duplicative motions as moot. Doc. 9. Observing that

Plaintiff’s “initial filing appears to be a discovery motion but has been construed and docketed as
a Complaint,” the Court ordered Plaintiff to amend his Complaint within 14 days of the Order
and provided Plaintiff with additional instructions for doing so. Id. at 4–5. The Court cautioned
Plaintiff that “failure to file an appropriate Amended Complaint also could result in the dismissal
of his cause of action for failure to follow this Court’s Order.” Id. at 5. The Court mailed this
Order to Plaintiff at the most recent address it has for him, and that Order has not been returned
to the Court as undeliverable or as otherwise failing to reach Plaintiff. The Court has not
received any pleading from Plaintiff since issuing the December 6, 2018 Order. Indeed, Plaintiff
has not taken any action in this case since filing his third motion to proceed in forma pauperis on
July 9, 2018.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s directive. For the reasons set forth below, I RECOMMEND the Court DISMISS
Plaintiff’s Complaint without prejudice, DIRECT the Clerk of Court to CLOSE this case and
ENTER the appropriate judgment of dismissal, and DENY Plaintiff 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 claims sua sponte pursuant to either Federal Rule of Civil

Procedure 41(b) or the court’s inherent authority to manage its docket. Link v. Wabash R.R.
Co., 370 U.S. 626 (1962); 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)). 1 In particular, Rule 41(b) allows for the involuntary dismissal of a

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. In this case, the Court forewarned
2

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,
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

Plaintiff that his failure to comply with its Orders may result in the dismissal of his Petition. Doc. 9 at 5–
6.
3

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 failed to file a response to this Court’s Order, the Court is unable to
move forward with this case. Moreover, though Plaintiff was given ample time to follow the
Court’s directives, he has not made any effort to do so or to inform the Court as to why he cannot
comply with its directives. Indeed, Plaintiff has not taken any action in this case since he filed
his third motion to proceed in forma pauperis on July 9, 2018.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
doc. 1, for failure to prosecute and failure to follow this Court’s Order.
II.

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

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

4

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, 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 this action without
prejudice 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 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 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

5

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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 4th day of February,
2019.

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

6