Travis v. Hooks et al
Filing
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REPORT AND RECOMMENDATIONS of the Magistrate Judge that this action be DISMISSED, without prejuidce, and the Clerk be directed to enter the appropriate judgment of dismissal and CLOSE this case re 1 Complaint (Objections to R&R due by 9/18/2015). A ny party seeking to object to this Report and Recommendation is ORDERED to file a specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. Thus, in forma pauperis status on appeal should be DENIED. ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/1/2015. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CASEY TRAVIS,
Plaintiff,
CIVIL ACTION NO.: 6:15-cv-69
v.
WARDEN HOOKS; MR. SMITH; JOHN
DOE, Warden at Coastal S.P.; JOHN DOE,
Officers and Staff at Coastal S.P.; A.S.M.P.;
and JOHN DOE, Doctor at A.S.M.P.,
Defendants.
ORDER and REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
Order of July 8, 2015. (Doc. 3.) For the following reasons, I RECOMMEND that Plaintiff’s
claims (doc. 1) be DISMISSED without prejudice for failure to prosecute.
I further
RECOMMEND that Plaintiff be denied leave to appeal in forma pauperis.
BACKGROUND
On June 22, 2015, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Rogers 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 July 8, 2015. (Doc. 3.) In that Order, the Court directed
Plaintiff to file a prisoner trust fund account statement and a consent form to collection of fees
from his trust account. (Id. at 2-3.) The Court emphasized that should Plaintiff fail to comply
with those directives within thirty days, the Court would dismiss his case. (Id. at 3.) Plaintiff
has not taken any action in response to that Order. Indeed, Plaintiff has not made any filings in
this case since his initial Complaint and Motion to Proceed In Forma Pauperis.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders.
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 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 Railroad Company, 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 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. 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)).
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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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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
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 Plaintiff having
neither consented to the collection of fees nor provided a statement of his prison trust fund
account, the Court cannot proceed in this case. Moreover, Plaintiff was given ample notice of
the consequences of his failure to follow the Court’s Orders, and Plaintiff has not made any
effort to do so or to otherwise prosecute this case.
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Thus, Plaintiff’s Section 1983 Complaint (doc. 1) should be DISMISSED without
prejudice for failure to prosecute, and this case should be CLOSED.
II.
Leave to Appeal In Forma Pauperis
The Court should also deny Petitioner 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 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 ORDERED and RECOMMENDED, this 1st day of September, 2015.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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