Watson v. Toole et al

Filing 22

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Defendant's 15 Joint MOTION to Dismiss be GRANTED, that this action be DISMISSED, without prejudice, and that the Clerk be directed to enter the appropriate judgment of dismissal and to CLOSE this case. I further recommend that the Court DENY Plaintiff's 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. ORDER directing the service of the Report and Recommendation of the Magistrate Judge. ( Objections to R&R due by 8/3/2015). Signed by Magistrate Judge R. Stan Baker on 7/15/2015. (ca)

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

JOSHUA WATSON,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-116

v.
JANET BREWTON; MADIA WEST;
DELAINE MAGAHA; and MARLENE
PARKER,
Defendants.

ORDER and REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants’ Motion to Dismiss (doc. 15) and
Plaintiff’s failure to comply with the Court’s Order of June 12, 2015 (doc. 21) and his failure to
inform the Court, in writing or otherwise, of any new or different address. For the following
reasons, I RECOMMEND that Defendants’ Motion be GRANTED and that Plaintiff’s claims
be DISMISSED without prejudice for failure to prosecute. I further RECOMMEND that
Plaintiff be denied leave to appeal in forma pauperis
BACKGROUND
On November 3, 2014, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Georgia State Prison in Reidsville, Georgia.
(Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed In Forma Pauperis. (Doc. 2.)
The Court granted that Motion on January 12, 2015. (Doc. 3.) In that Order, the Court directed
Plaintiff to, among other things, inform the Court upon any change in his address and that his
failure to do so could result in the dismissal of this action. (Id. at 3.)

On February 26, 2015, the undersigned issued an Order and Report and Recommendation
following a frivolity review of Plaintiff’s Complaint. (Doc. 8.) The Court directed a copy of
Plaintiff’s Complaint be served upon Defendant Madia West, Miss Magaha, Marlene Parker, and
Janet Brewton. Id.

The Report recommended that claims against all other Defendants should

be dismissed. Id. Plaintiff did not file any objections, and the Court adopted the Report and
Recommendation and dismissed all claims except against those against Defendants West,
Magaha, Parker, and Brewton. (Doc. 18.) The copy of the Report and Recommendation mailed
to Plaintiff was returned to the Court with an indication that it was “refused” and that the
deliverer was “unable to forward.”

(Doc. 11.)

The Order adopting the Report and

Recommendation was also returned as undeliverable with a notation that Plaintiff was not at
Georgia State Prison. (Doc. 20.)
In the Report and Recommendation, the Court provided instructions to Plaintiff regarding
the prosecution of this action. (Id. at 10-12.) The Court again emphasized to Plaintiff that he
must update the Court regarding any change in his address and that the Court would dismiss his
case if he failed to do so. The Court further instructed Plaintiff that if he “does not press his case
forward, the Court may dismiss it for want of prosecution.” (Id. at 11.) The Court specifically
informed Plaintiff of his obligation to respond to a motion to dismiss within 14 days of service of
such a motion. (Id. at 12.) The Court explained that should Plaintiff fail to respond to such a
motion, the Court will assume that he does not oppose the Motion. Id.
Defendants West, Magaha, Brewton, and Parker filed a Motion to Dismiss all claims
against them on March 19, 2015. (Doc. 15.) In that Motion, Defendants stated that Plaintiff was
released from custody on February 25, 2015. (Id. at 2.) Defendants attached the affidavit of

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Lynette Mobely, an administrative assistant at Georgia State Prison declaring that Plaintiff was
no longer in the custody of the Georgia Department of Corrections. (Doc. 15-1.)
Defendants also moved to stay any discovery deadlines while the Motion to Dismiss was
pending. (Doc. 14.) Plaintiff did not file a response to the Motion to Dismiss or the Motion to
Stay. On June 12, 2015, the Court granted the Defendant’s Motion to Stay and instructed
Plaintiff to respond to Defendants’ Motion to Dismiss within twenty-one days. (Doc. 21.) The
Court again alerted Plaintiff that should he fail to respond to the Motion to Dismiss, the Court
would presume that he does not oppose the Motion. (Doc. 21 at 3.) In addition, the Court
provided Plaintiff with a copy of Federal Rules of Civil Procedure 41 and 12 to ensure that he
had full notice of the requirements of the Rules regarding motions to dismiss. Id.
Plaintiff has entirely failed to respond to Defendants’ Motion to Dismiss.

Indeed,

Plaintiff has not made any filings in this case since his January 5, 2015 Affidavit. (Doc. 7.)
Furthermore, the Court has been unable to mail pleadings to Plaintiff, and he has never updated
the Court of any change of address. 1
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders and his failure to respond to Defendants’ Motion to Dismiss. For the reasons set
forth below, I recommend that Plaintiff’s claims be dismissed and that he be denied leave to
appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and Follow this Court’s Orders

A district court may dismiss a plaintiff’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
1

The Court’s most recent Order (doc. 21) was mailed to Plaintiff at Georgia State Prison, the only
address on file for Plaintiff. This Order has not yet been returned as undeliverable.

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manage its docket. 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 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. 0512660, 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. 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

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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 Petitioner that his failure to consent to the collection of fees and provide a prisoner trust fund
account would result in dismissal of this action. (Doc. 3, p. 3.)

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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
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).
Despite having been advised of his obligation to inform the Court upon any change in his
address, Plaintiff has failed to do so. See Local Rule 11.1 (“each attorney and pro se litigant has
a continuing obligation to apprise the Court of any address change”).

Moreover, Plaintiff has

not filed any opposition to Defendants’ Motion to Dismiss despite being apprised of the
consequences for failing to respond. 3 Additionally, with Plaintiff not having taken any action on
this case for approximately seven months, he has failed to diligently prosecute his claims.
Thus, Plaintiff’s Section 1983 Complaint (doc. 1) should be DISMISSED without
prejudice for failure to prosecute, and this case should be CLOSED.

3

It is possible that Plaintiff never received the Defendants’ Motion or the Court’s Order instructing
Plaintiff to respond to the same. However, the fault for such a situation lies with Plaintiff for failing to
update his address of record.

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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, 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
take 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. 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). Or,
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).
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, in forma pauperis status on appeal should be DENIED.

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CONCLUSION
For the above-stated reasons, it is my RECOMMENDATION that Defendant’s Motion
to Dismiss (doc. 15) be GRANTED, that this action be DISMISSED, without prejudice, and
that the Clerk of Court be directed to enter the appropriate judgment of dismissal and to CLOSE
this case. I further recommend that the Court DENY Plaintiff 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.

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.
SO REPORTED and RECOMMENDED, this 15th day of July, 2015.

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

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