Grogan v. Bryson et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice for failure to prosecute and failure to follow this Court's orders and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED the Court DENY Plaintiff leave to appeal in forma pauperis. 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 9/8/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/25/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:17-cv-32
HOMER BRYSON; WARDEN DOUG
WILLIAMS; TYRONE SMITH; JORDAN
WICKER; UNIT MANAGER ERIC
SMOKES; DERIC GODFREY; KARL
WILLIAMS; EYVETTE COOK; and FNU
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with the Court’s
directive of June 15, 2017. (Doc. 6.) For the following reasons, I RECOMMEND the Court
DISMISS Plaintiff’s Complaint, (doc. 1), without prejudice for failure to prosecute and 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.
On February 27, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement while housed at Smith State Prison in Glennville, Georgia.
(Doc. 1.) Plaintiff did not pay the required filing fee or move to proceed in forma pauperis when
filing this action. Accordingly, on February 27, 2017, the Clerk of Court directed Plaintiff to
either pay the $400.00 filing fee or file a motion to proceed in forma pauperis. (Doc. 2.) The
Clerk warned Plaintiff that his failure to comply with that notice may result in dismissal of this
When Plaintiff failed to return a motion to proceed in forma pauperis or to pay the filing
fee, the undersigned issued a Report and Recommendation to dismiss Plaintiff’s Complaint.
(Doc. 3.) However, Plaintiff timely filed an Objection in which he alleged that, although he
drafted and submitted an in forma pauperis motion, prison authorities failed to mail that motion.
In an abundance of caution, the Court vacated its May 3, 2017, Report and
Recommendation, (doc. 3), on June 15, 2017, and ordered Plaintiff to pay the requisite filing fee
or to submit a motion to proceed in forma pauperis within fourteen (14) days of the date of that
Order. Plaintiff has again failed to submit an in forma pauperis motion or to pay the requisite
The Court must now determine how to address Plaintiff’s failure to pay the filing fee and
failure to comply with this Court’s directive. For the reasons set forth below, I RECOMMEND
that the Court DISMISS Plaintiff’s Complaint without prejudice and DENY him leave to
appeal in forma pauperis.
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 R.R. Co., 370 U.S. 626 (1962); 1 Coleman v. St. Lucie Cty. Jail, 433 F.
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 Plaintiff that his failure to pay the filing fee or move to proceed in forma pauperis could result in
dismissal of this action. (Doc. 6.)
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.
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 paid the filing fee nor moved to proceed in forma pauperis, the Court cannot proceed in
this case. See 28 U.S.C. §§ 1914 & 1915. Moreover, Plaintiff was given ample notice of the
consequences of his failure to follow the Court’s directive, and Plaintiff has not made any effort
to do so or to otherwise prosecute this case.
Thus, the Court should DISMISS Plaintiff’s Section 1983 Complaint, (doc. 1), without
prejudice for failure to prosecute and failure to follow this Court’s Orders 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 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
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, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith.
§ 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 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, the Court should DENY Plaintiff in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND the Court DISMISS Plaintiff’s
Complaint, (doc. 1), without prejudice for failure to prosecute and 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.
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of August,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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