Bell v. Bryson et al

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this action be DISMISSED, without prejudice for failure to prosecute and failure to follow Court Orders re 1 Complaint filed by Levon Victor Bell. I further recommend that the Court deny Plai ntiff leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is OREDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 2/17/2016). ORDER directing service of the REPROT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/3/2016. (ca)

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

LEVON VICTOR BELL,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-114

v.
COMMISSIONER HOMER BRYSON;
WARDEN STANLEY WILLIAMS; DEPUTY
WARDEN BOBBIT; CPT. ELLIS; LT.
HUNT; and SGT. COREY OSBORNE,
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
Order of October 13, 2015, to furnish the Court with his prison trust fund account statement and
his consent to collection of fees from that account. (Doc. 4.) For the following reasons, I
RECOMMEND that the Court DISMISS without prejudice Plaintiff’s Complaint for failure to
prosecute and failure to follow Court Orders. I further RECOMMEND that the Court DENY
Plaintiff leave to appeal in forma pauperis.
BACKGROUND
Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed a cause of action
pursuant to 42 U.S.C. § 1983 contesting certain conditions of his confinement.

(Doc. 1.)

Plaintiff also sought to proceed in the present action in forma pauperis. (Doc. 3.) By Order
dated October 13, 2015, the Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 4.)

In that Order, the Court instructed Plaintiff, to furnish the Court with his statement of his prison
trust fund account and the consent to collection of fees from that account pursuant to 28 U.S.C.
§ 1915(b)(1). (Id. at pp. 2–3.) The Court explained that if Plaintiff failed to respond to the
Court’s Order by November 12, 2015, the Court would dismiss this case. (Id. at p. 4.) The
Court has not received any pleading from Plaintiff since that Order. Indeed, Plaintiff has not
taken any action in this case after filing this Complaint more than four months ago.
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 that the Complaint be dismissed
and that Plaintiff be denied 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 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
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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.

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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
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);

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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
failed to provide the Court with his prison trust fund account statement and his consent to
collection of fees, the Court has no means to collect the filing fees in this case as required by 28
U.S.C. § 1915(b)(1). Thus, the Court is unable to move forward with this case. Moreover,
Plaintiff was given ample time to follow the Court’s directive, and Plaintiff has not made any
effort to do so.
Thus, Plaintiff’s Complaint, (doc. 1), should be DISMISSED without prejudice for
failure to prosecute and failure to follow this Court’s Order, and this case should be CLOSED.
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
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

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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 action, 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 should.
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.
§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).

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

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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 REPORTED and RECOMMENDED, this 3rd day of February,
2016.

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

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