Cadle v. Tatum et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint for failure to follow a Court Order and failure to prosecute and DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal. It is further RECOMMENED that 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 12/5/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 11/21/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:17-cv-99
CLAYTON TATUM; JENNIFER CLARK;
and ANDREW MCFARLANE, all in their
individually and official capacities,
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 31, 2017. (Doc. 5.) For the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff’s Complaint, (doc. 1), for failure to prosecute and to
follow this Court’s Order. I also RECOMMEND the Court DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to
appeal in forma pauperis.
Plaintiff, who is incarcerated at Coffee Correctional Facility in Nicholls, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983 to contest certain conditions of his confinement while
he was housed at Rogers State Prison in Reidsville, Georgia. (Doc. 1.) Plaintiff also filed a
Motion to Proceed in Forma Pauperis. (Doc. 2.) This Court deferred ruling on Plaintiff’s
Motion to Proceed in Forma Pauperis by Order dated July 31, 2017, because Plaintiff submitted
an Application to Proceed in Forma Pauperis on a form other than that which this Court prefers
its prisoner-plaintiffs to use. (Doc. 5.) The Court directed Plaintiff to re-submit his application
within fourteen (14) days of that Order and advised that “his failure to timely comply with this
Court’s directive may result in the dismissal of his Complaint for failure to follow a Court Order
and failure to prosecute.” (Id. at p. 5 (emphasis in original).) In that same Order, the Court
deferred its requisite frivolity review of Plaintiff’s Complaint. The Court directed Plaintiff to
amend his Complaint using the Court’s preferred form complaint. (Id.) The Court advised
Plaintiff his claims were not related to each other, that he must set forth allegations in his
Amended Complaint indicating that his constitutional rights had been violated and by whom
those rights had been violated, and that he failed to make any factual allegations against the
named Defendants. (Id.) In this regard, the Court provided Plaintiff with specific instructions as
to how he should amend his Complaint. (Id. at p. 6.) Plaintiff was cautioned that his failure to
file an appropriate Amended Complaint “could result in the dismissal of his cause of action for
failure to follow this Court’s Order.” (Id. at p. 7 (emphasis in original).) This Order was
returned as undeliverable on August 14, 2017, but, after Plaintiff advised the Court of his change
of address, the Clerk of Court re-mailed this Order to Plaintiff. This Order was not returned as
undeliverable or as otherwise failing to reach Plaintiff. Plaintiff did not re-submit an Application
to Proceed in Forma Pauperis on this Court’s preferred forms, nor did he file an Amended
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Order and failure to prosecute. For the reasons set forth below, I RECOMMEND the
Court DISMISS without prejudice Plaintiff’s Complaint and DENY Plaintiff leave to appeal in
Dismissal for Failure to Follow this Court’s Order and Failure to Prosecute
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); 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)).
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).
Plaintiff did not comply with this Court’s Order to file an appropriate Amended
Complaint or to re-submit his Motion to Proceed in Forma Pauperis on the Court’s preferred
forms, despite this Court’s directive to do so and the Court’s warnings that the failure to file
either of these forms could result in the dismissal of this action. Instead, Plaintiff failed to
respond to the Court’s Order entirely. Indeed, Plaintiff has not filed any pleadings in this case
since his Notice of Change of Address in August 25, 2017. (Doc. 9.)
Consequently, the Court should DISMISS without prejudice Plaintiff’s Complaint for
Plaintiff’s failure to follow this Court’s Order and failure to prosecute. See Brown, 205 F. App’x
at 802 (upholding dismissal 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).
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1
Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. 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 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.
A certificate of appealability is not required in this Section 1983 action.
The Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis.
(Doc. 2.) I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint for
failure to follow a Court Order and failure to prosecute and DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal.
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 21st day of November,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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