Taplin v. Hester et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice, DISMISS as moot Defendant's 23 MOTION for Summary Judgment, and DIRECT the Clerk of Court to CLOSE this case. 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) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/23/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/9/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-128
OFFICER JASON HESTER,
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 July 24, 2017, to inform the Court in writing of any potential change in his address.
For the following reasons, I RECOMMEND the Court DISMISS Plaintiff’s
Complaint, (doc. 1), without prejudice for Plaintiff’s failure to follow this Court’s Orders and
failure to update his address, DISMISS as moot Defendant’s Motion for Summary Judgment,
(doc. 23), and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the
Court DENY Plaintiff leave to appeal in forma pauperis.
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983, contesting certain conditions
of his confinement at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) Concurrently,
Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) In granting that Motion, the
Court forewarned Plaintiff that, “[w]hile this action is pending, the Plaintiff shall immediately
inform this Court in writing of any change of address. Failure to do so will result in dismissal of
this case, without prejudice.” (Doc. 3, p. 3 (emphasis in original).) The Court directed service of
Plaintiff’s Complaint upon Defendant Hester based on Plaintiff’s contention that Defendant
Hester used excessive force against him. (Doc. 11.) The Court once again advised Plaintiff in its
Order directing service of his Complaint: “Plaintiff is charged with the responsibility of
immediately informing this Court and defense counsel of any change of address during the
pendency of this action. Local Rule 11.1. Plaintiff’s failure to notify the Court of a change in
his address may result in dismissal of this case.” (Doc. 11, p. 11.)
Defendant then filed a Motion for Summary Judgment, (doc. 23), to which Plaintiff
responded, (doc. 25). As part of the materials submitted in support of his Motion, Defendant
provided the Court with a copy of Plaintiff’s deposition. (Doc. 23-5.) During his deposition,
which was taken on August 23, 2016, Plaintiff testified that he was serving a six (6) year
sentence, had already served more than five years of that sentence, and would “max out next
year.” (Id. at p. 21.) Based on Plaintiff’s deposition testimony, the Court had reason to believe
Plaintiff may no longer be housed at Georgia State Prison and advised Plaintiff that, if that were
the case, he failed to provide the Court with an updated address, despite the Court’s directives to
notify it of any change in address and admonitions regarding Plaintiff’s failure to do so.
(Doc. 29, p. 2.) The Court directed the Clerk of Court to mail a copy of that Order to Plaintiff at
his last known address and ordered Plaintiff to provide the Court with any change in his address
within fourteen (14) days of that Order, up to and including August 4, 2017. (Id.) The Court
forewarned Plaintiff that, should he fail to respond to this Order within this allotted time, the
Court would dismiss Plaintiff’s Complaint based on his failure to follow this Court’s Orders.
(Id.) This Order was returned to the Court with the notations “Return to Sender” and “Not at this
address” on the envelope. (Doc. 30, p. 1.) Plaintiff has not responded to the Court’s July 24,
Order. In fact, Plaintiff has made no filings in this case since November 2, 2016, (doc. 25).
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s directives. For the reasons set forth below, I RECOMMEND the Court DISMISS
Plaintiff’s Complaint without prejudice, DISMISS as moot Defendant’s Motion for Summary
Judgment, and DENY Plaintiff leave to appeal in forma pauperis.
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 R.R. Co., 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. 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)).
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. However, this Court repeatedly provided
Plaintiff with notice of its intention to dismiss his case if he failed to advise the Court of any update in his
address. (Doc. 3, p. 3; Doc. 11, p. 11; Doc. 29, p. 2.)
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
failed to provide the Court with any update to his address, the Court is unable to move forward
with this case.
In fact, the Court has no means by which to communicate with Plaintiff.
Additionally, Plaintiff was given ample time to follow the Court’s directive, and Plaintiff 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 made any filings in this case in over nine (9) months’ time.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
(doc. 1), for failure to update his address and failure to follow this Court’s Orders, DISMISS as
moot Defendant’s Motion for Summary Judgment, (doc. 23), and DIRECT the Clerk of Court to
CLOSE this case.
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
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. Cty. 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). 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.
For the above-stated reasons, I RECOMMEND the Court DISMISS this action without
prejudice, DISMISS as moot Defendant’s Motion for Summary Judgment, and DIRECT the
Clerk of Court 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.
The Court ORDERS any party seeking to object to this Report and Recommendation 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 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. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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 Defendant and upon Plaintiff at
his last known address.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of August,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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