COBBLE v. ALLEN et al

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Cobble's 1 Petition, DIRECT the Clerk to CLOSE this case, and DENY Cobble leave to appeal in forma pauperis. The Court ORDERS any party seeking to obje ct 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 10/27/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/13/2017. (ca)

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

DANIEL ERIC COBBLE,
Petitioner,

CIVIL ACTION NO.: 6:17-cv-105

v.
WARDEN MARTY ALLEN,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Daniel Eric Cobble (“Cobble”), an inmate at Georgia State Prison in
Reidsville, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) For the reasons set forth below, the Court DENIES Cobble’s Motion for Leave to
Proceed in Forma Pauperis. (Doc. 2.) In addition, I RECOMMEND the Court DISMISS
without prejudice Cobble’s Petition for failure to prosecute and failure to follow this Court’s
Order, DIRECT the Clerk of Court to CLOSE this case, and DENY Cobble leave to appeal in
forma pauperis.
BACKGROUND
Cobble filed his Petition along with a Motion for Leave to Proceed in forma pauperis on
June 16, 2017, in the United States District Court for the District of Columbia. (Docs. 1, 2.)
Cobble’s Petition was transferred to this Court, and on August 25, 2017, the Court deferred
ruling on Cobble’s in forma pauperis Motion and directed Cobble to file an Amended Petition.
(Doc. 6.) Cobble’s original Petition was “illegible and incomprehensible,” and “[i]n its current
form, the Court [could not] determine the circumstances surrounding Cobble’s detention or the

relief he seeks.” (Id. at p. 1.) Additionally, the Court directed Cobble to file a new Motion for
Leave to Proceed in Forma Pauperis because his original filing was unresponsive to the form’s
questions. (Id. at pp. 1–2.) However, Plaintiff failed to file either an Amended Petition or an
appropriate Motion for Leave to Proceed in Forma Pauperis.
DISCUSSION
I.

Dismissal for Failure to Prosecute and Failure to Follow this Court’s Orders
A district court may dismiss 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 petitioner’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)).

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.
2

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).
The Court ordered Cobble to file an appropriate Motion to Proceed in Forma Pauperis
and to amend his Petition. However, Cobble failed to file either of these documents. With
Cobble having failed to file a response to this Court’s Order, the Court is unable to move forward

3

with this case. Furthermore, the Court has no means to collect the filing fees in this case, as
required by Rule 3 of the Rules Governing Section 2254 Petitions. 2 Cobble was provided ample
time to follow the Court’s directives, but Cobble has not made any effort to do so or to inform
the Court as to why he cannot comply. Indeed, Cobble has not taken any action in this case since
filing his Petition and Motion with the United States District Court for the District of Columbia
on June 16, 2017.
Accordingly, the Court should DISMISS without prejudice Cobble’s Petition for failure
to prosecute and failure to follow this Court’s Orders.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Cobble leave to appeal in forma pauperis. Though Cobble

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
2

Petitions brought pursuant to 28 U.S.C. § 2241 are also governed by the Rules Governing Section 2254
Petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases.
4

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, 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 Cobble in forma
pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DENIES Cobble’s Motion to Proceed in Forma
Pauperis, (doc. 2). Furthermore, I RECOMMEND the Court DISMISS without prejudice
Cobble’s Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Cobble 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
5

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 Cobble.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of October,
2017.

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

6