Floyd v. Berry et al

Filing 12

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action without prejudice and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case re 7 Amended Complaint filed by Eddie Frank Floyd, II I. 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 (Objections to R&R due by 11/18/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 11/4/2016. (ca)

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

EDDIE FRANK FLOYD, III,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-119

v.
KIMBERLA BERRY; DOUG WILLIAMS,
Warden; MRS. CUCUMBER, Kitchen
Director; and MRS. COOK, Kitchen Director,
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 September 12, 2016, to furnish the Court with his prison trust fund account statement
and his consent to collection of fees from that account. (Doc. 5.) 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 DIRECT the Clerk of Court to CLOSE this
case. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND
Plaintiff, who is housed at Smith State Prison in Glennville, Georgia, brought this action
pursuant to 42 U.S.C. § 1983 on August 25, 2016. (Doc. 1.) On August 25, 2016, the Court
deferred ruling on Plaintiff’s Motion for Leave to Proceed in Forma Pauperis because Plaintiff
failed to use the Court’s preferred application form. (Doc. 3.) Plaintiff re-submitted his Motion,
(doc. 4), and the Court granted his Motions by Order dated September 12, 2016. (Doc. 5.) In
that Order, the Court instructed Plaintiff to furnish the Court with a 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 stressed that Plaintiff was to immediately inform the
Court of any change of address, and his failure to do so would result in the dismissal of this case,
without prejudice. (Id. at p. 3.) The Court also explained that, if Plaintiff failed to complete and
return these forms or otherwise respond to the Court’s directives by October 12, 2016, the Court
would dismiss this case without prejudice for failure to prosecute and follow this Court’s Orders.
(Id.)
On September 12, 2016, the Clerk of Court mailed a copy of the Court’s Order to
Plaintiff at his last known place of residence, and the Order was not returned to the Court as
undeliverable or otherwise failing to reach Plaintiff. However, the Court has not received any
pleading from Plaintiff which is responsive to that Order. Instead, Plaintiff filed a Notice of
Filing Proposed Order, an Amended Complaint, a Motion to Appoint Counsel, and two letters.
(Docs. 6–10.)
DISCUSSION
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 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 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.

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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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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)).
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.

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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 his consent to collection of fees and his trust account statement,
as directed, 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 or to
inform the Court as to why he cannot comply with its directives. Indeed, Plaintiff has submitted
only non-responsive filings in this case following this Court’s September 12, 2016, Order.
The Court notes Plaintiff’s letter dated October 10, 2016, which was filed on October 17,
2016. (Doc. 10.) In this letter, Plaintiff asserts that, if the Court had sent him any mail recently,
from around September 22 until the date of that letter, he had not received it because the “mail
lady” claims she misplaced it. (Id. at p. 1.) In response to this letter and to the letter dated
September 26, 2016, (doc. 9.), the Clerk of Court mailed a copy of this case’s docket sheet to
Plaintiff. (Dkt. Entries 9, 10.) There is nothing before the Court indicating the Clerk’s mailings
were returned to the Court or otherwise were unable to reach Plaintiff. Thus, Plaintiff has been
made aware of this Court’s Order dated September 12, 2016, on at least two occasions in

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addition to the Court’s Order itself, and he still has not complied with or otherwise informed the
Court as to why he cannot comply with the Court’s directives.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
(doc. 1), for failure to prosecute and failure to follow this Court’s Orders and DIRECT the Clerk
of Court to CLOSE this case.
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. 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). 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).

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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.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS this action without
prejudice 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

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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 the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 4th day of November,
2016.

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

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