Terrell v. Williams et al

Filing 19

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's case for Plaintiff's failure to prosecute and failure to follow this Court's Order, DIRECT the Clerk to CLOSE this case and enter t he appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis re 9 Amended Complaint. 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 2/20/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/5/2018. (ca)

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

MARCUS ANTHONY TERRELL,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-104

v.
DOUG WILLIAMS; MS. THOMPSON;
CAPTAIN WICKER; JOHN DOE
OFFICIALS; OFFICER BEAR; and
UNKNOWN INSURANCE PROVIDERS,
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. For the following reasons, the Court DENIES Plaintiff’s Motions to Proceed in Forma
Pauperis before this Court. (Docs. 2, 6, 10.) Additionally, I RECOMMEND that the Court
DISMISS without prejudice Plaintiff’s Complaint, as amended, (docs. 1, 9), for Plaintiff’s
failure to prosecute and failure to follow this Court’s Order, 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.
BACKGROUND
On August 1, 2017, Plaintiff proceeding pro se, filed a Complaint, pursuant to 42 U.S.C.
§ 1983, contesting the conditions of his confinement while housed at Smith State Prison in
Glennville, Georgia. (Doc. 1.) With his Complaint, Plaintiff filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) The Court deferred ruling on that Motion and directed Plaintiff to amend his

Complaint because “Plaintiff’s 164-page Complaint with allegations against a multitude of
officials—named and unnamed—is a shotgun pleading and, in its current form, fails to state a
viable claim.” (Doc. 5, p. 4.)
Plaintiff filed an Amended Complaint, (doc. 9), and I recommended dismissal because
“Plaintiff’s Amended Complaint is still a shotgun pleading, and the Court cannot tell which
allegations of fact are intended to support which claim(s) for relief.” (Doc. 14, p. 6 (citations and
quotations omitted).) However, Plaintiff filed Objections to this Report and Recommendation,
explaining that many of incidents were related because they were retaliatory actions taken after
Plaintiff filed grievances regarding Smith State Prison’s mail policy.

(Doc. 15, p. 6.)

Accordingly, the Court provided Plaintiff with yet another opportunity to amend his Complaint.
(Doc. 17.)
The Court again provided detailed and specific instructions regarding how to file a
properly amended complaint. (Id. at p. 3.) The Court further warned Plaintiff that a failure to
properly amend would result in dismissal.

(Id.)

Despite these detailed instructions and

warnings, Plaintiff failed to file any amendment. Indeed, the Court’s Order directing Plaintiff to
amend was returned as undeliverable because Plaintiff has since been released from prison.
(Doc. 18.) However, Plaintiff has not filed a notice of change of address with the Court or taken
any action in this case for over three months.
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 that the Court DISMISS
without prejudice Plaintiff’s Complaint and DENY Plaintiff leave to appeal in forma pauperis.

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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
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.
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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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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).
The Court issued an Order directing Plaintiff to file a Second Amended Complaint and
provided specific instructions as to how Plaintiff could amend to state a plausible claim.
(Doc. 17, p. 3.) The Court warned Plaintiff that, if he “fail[ed] to abide by this directive, the
Court will dismiss this case for failure to prosecute and failure to follow a Court Order.” (Id. at
pp. 3–4.) However, Plaintiff ignored the Court’s instructions entirely and failed to submit a
Second Amended Complaint. Plaintiff was given ample time to follow the Court’s directive but
failed to make any effort to do so. Additionally, with Plaintiff having failed to update the Court

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with his current address, the Court has no means by which it can communicate with Plaintiff.
Finally, Plaintiff has failed to diligently prosecute his claims, as he has not taken any action in
this case in over three months.
Accordingly, the Court should DISMISS without prejudice Plaintiff’s Complaint, as
amended, (docs. 1, 9), for failure to prosecute and failure to follow this Court’s Order.
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
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, the Court DENIES Plaintiff’s Motions to Proceed in Forma
Pauperis. (Docs. 2, 6, 10.) Additionally, I RECOMMEND that the Court DISMISS without
prejudice Plaintiff’s case for Plaintiff’s failure to prosecute and failure to follow this Court’s
Order, 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.
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

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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 5th day of February,
2018.

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

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