Bentley v. Kight et al

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice for Plaintiff's failure to follow this Court's Orders and failure to prosecute and DIRECT the Clerk of Court to CLOS E 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 5/26/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/12/2017. (csr)

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

ANTHONY JEROME BENTLEY,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-8

v.
ALVIE KIGHT; TOOMBS COUNTY
DETENTION CENTER; KATHY PALMER;
GABRIEL T. CLIETT; TOOMBS COUNTY,
GEORGIA; HAYWARD ALTMAN; and
AMANDA HART,
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 March 31, 2017, to file an appropriate Amended Complaint. (Doc. 9.) For the
following reasons, the Court DENIES Plaintiff’s Motion to Proceed in Forma Pauperis.
(Doc. 2.) For these same 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
prosecute and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the
Court DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND
In his Complaint, which was submitted on a handwritten form, Plaintiff asserted
Defendants Kight and the Toombs County Detention Center violated his First Amendment rights
by failing to provide Plaintiff with a copy of the Detention Center’s handbook so that he could
know the rules and regulations at the Detention Center. (Doc. 1, p. 11.) Plaintiff alleged the

religious materials he ordered were either thrown away upon arrival at the Detention Center or
his request was not sent to the headquarters for his religion. According to Plaintiff, Defendant
Hart handled the inmate mail and “has been known to hold and mishandle” mail. (Id.) Plaintiff
maintained he has not been allowed to freely exercise his religious beliefs since he is not allowed
to receive his requested religious materials. Plaintiff contended Defendant Hart informed him
that he could not have access to a law library and should instead request certain materials from
her, which could take anywhere from ten (10) days to four (4) months to reach him, if at all. (Id.
at p. 12.) Plaintiff stated that his legal mail was tampered with because he received an envelope
containing legal mail that had been opened and then was re-sealed with tape. (Id.) Additionally,
Plaintiff asserted he has been subjected to cruel and unusual punishment because he has not
received personal hygiene items and other minimum necessities. (Id.) Plaintiff also set forth
various claims relating to his ongoing criminal proceedings in the Toombs County Superior
Court. (Id. at pp. 13–18.)
The Court directed Plaintiff to file an Amended Complaint using the form complaint
prisoners are to use when filing 42 U.S.C. § 1983 causes of action in this Court and directed the
Clerk of Court to provide Plaintiff with a blank prisoner civil rights complaint form. (Doc. 9,
p. 4.) The Court advised Plaintiff that the claims he set forth were not related to each other and
that he could not join these claims in one action unless he showed that his claims arose from “the
same transaction or occurrence or series of related transactions or occurrences[.]” (Id. (quoting
Fed. R. Civ. P. 20(a).) The Court cautioned Plaintiff that, should he fail to file an appropriate
Amended Complaint, his cause of action would be dismissed for failure to prosecute and failure
to follow this Court’s Orders. (Id. at p. 6.) The Court mailed that Order to Plaintiff at the most
recent address it has for him, and the Order was returned to the Court as undeliverable.

2

(Doc. 10.) The Court has not received any pleading from Plaintiff since he submitted a letter to a
United States Magistrate Judge in the Middle District of Georgia on December 27, 2016.
(Doc. 5.)
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 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.
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

1

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.
3

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.
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 file an Amended Complaint setting forth claims that arose from the same transaction or

4

occurrence or series of related transactions or occurrences, the Court is unable to move forward
with this case. Additionally, the Court has no means by which it can communicate with Plaintiff
and 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 not taken any action in this
case in more than five months’ time.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
(doc. 1), for failure to prosecute and failure to follow this Court’s Order 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). Stated another way, an in forma pauperis action is

5

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.
CONCLUSION
For the above-stated reasons, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis. (Doc. 2.) For these same reasons, I RECOMMEND that 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

6

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 the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of May,
2017.

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

7