DICKERSON v. ADAMS

Filing 83

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action without prejudice and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal re: 1 Complaint. It is further RECOMMENDED tha t the Court DENY Plaintiff leave to proceed in forma pauperis on appeal. 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 5/14/2019). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge Benjamin W. Cheesbro on 4/30/2019. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
THOMAS RAY DICKERSON,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-109

v.
WARDEN ROBERT ADAMS; WARDEN
ADAM JORDAN; and NURSE FNU
PEACOCK,
Defendants.
ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to comply with this Court’s
February 20, 2019 Order directing Plaintiff to file a single amended complaint and this Court’s
March 27, 2019 Order directing Plaintiff to show cause why his case should not be dismissed for
failure to comply with that previous Order. Docs. 81, 82. Because Plaintiff has failed to
comply with or otherwise respond to this Court’s Orders, I RECOMMEND the Court DISMISS
this action without prejudice and DIRECT the Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff
leave to proceed in forma pauperis on appeal.
BACKGROUND
Plaintiff filed this cause of action under 42 U.S.C. § 1983 contesting certain events that
occurred while he was confined at Jenkins Correctional Facility in Millen, Georgia. 1 Doc. 6.
On March 3, 2018, the Magistrate Judge issued a Report recommending that Plaintiff’s claims
against two Defendants be dismissed but directed service on the third remaining Defendant.

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Plaintiff has since been released from state custody and is no longer incarcerated. Doc. 79.

Doc. 34. Plaintiff then filed numerous motions seeking to Amend his Complaint. Docs. 46, 58,
64, 67. The Court noted that these proposed amendments may have allowed Plaintiff to proceed
on his claims against the two Defendants the Court previously recommended be dismissed from
this suit. Doc. 81. Accordingly, on February 20, 2019, the Court ordered Plaintiff to file a
single amended complaint to supersede all previous filings. Id. Plaintiff failed to file the
directed amendment, and the Court then ordered Plaintiff to show cause why his case should not
be dismissed for failure to comply with the Court’s previous Order. Doc. 82. The Court gave
Plaintiff until April 10, 2019 to reply, and as of the date of this Order, Plaintiff has not filed a
response.
DISCUSSION
I.

Dismissal for Failure to Follow this Court’s Order
A district court may dismiss claims sua sponte pursuant to either Federal Rule of Civil

Procedure 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)). 2 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.

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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. In this case, the Court forewarned
Plaintiff that his failure to comply with its Orders may result in the dismissal of his Complaint. Doc. 81
at 3 (“Plaintiff’s failure to file an appropriate Amended Complaint also could result in the dismissal of
this cause of action for failure to follow this Court’s Order.”).
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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)).
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 § 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 § 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 a response compliant to this Court’s Order, the Court
is unable to move forward with this case. Moreover, though Plaintiff was given ample time to
follow the Court’s directives, he 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
since filing a notice of change of address on November 26, 2018.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
doc. 6, for failure to follow this Court’s Orders.

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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. County 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). An in forma pauperis action is frivolous
and 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 Plaintiff in forma
pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS this action without
prejudice and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate

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judgment of dismissal. I further RECOMMEND 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 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.
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 30th day of April,
2019.

____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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