Holmes v. Southern Correctional Medicine et al

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, for failure to prosecute and failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and en ter the appropriate judgment of dismissal. It is further RECOMMENDED that the Court DENY Plaintiff leave to appeal in forma pauperis. 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 5/17/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/3/2018. (csr)

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

SCOTT HOLMES,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-118

v.
SOUTHERN CORRECTIONAL MEDICINE;
TATTNALL COUNTY DETENTION
CENTER; and K. HUTLEY,
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
directive of March 9, 2018. (Doc. 3.) For the following reasons, I RECOMMEND the Court
DISMISS without prejudice Plaintiff’s Complaint, (doc. 1), for failure to prosecute and failure
to follow this Court’s Order 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
appeal in forma pauperis. 1

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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations omitted). A magistrate judge’s report and recommendation provides
such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union 349, 262
F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a district court’s intent to
sua sponte grant summary judgment where a magistrate judge issues a report recommending the sua
sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1296
(N.D. Ga. 2009) (noting that report and recommendation served as notice that claims would be sua sponte
dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due to be
dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this
finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation

BACKGROUND
On September 13, 2017, Plaintiff, proceeding pro se, filed a Complaint contesting certain
conditions of his confinement at Tattnall County Jail in Reidsville, Georgia. (Doc. 1.) The
Court granted Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on March 9, 2018.
(Doc. 3.) In that Order, the Court advised Plaintiff that he “shall immediately inform the Court
in writing of any change in address. Failure to do so will result in dismissal of this case, without
prejudice.” (Id. at p. 3 (emphases in original).) In addition, the Court informed Plaintiff that his
failure to respond to the Court’s Order by April 9, 2018, would result in the dismissal of this
cause of action for failure to prosecute and failure to follow a Court Order. (Id. at p. 4.) This
Order was returned to the Court with the notation “Inmate no longer here”. (Doc. 4.)
DISCUSSION
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
the Court DISMISS without prejudice Plaintiff’s Complaint and DENY Plaintiff leave to
appeal in forma pauperis.
I.

Dismissal for Failure to Prosecute and 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); 2 Coleman v. St. Lucie Cty. Jail, 433 F.

constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond). Additionally, Plaintiff has the opportunity to amend his Complaint to correct the
deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should Plaintiff seek to
amend his Complaint, he must file any desired amendment within fourteen (14) days from the date of
this Report and Recommendation.
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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. Nonetheless, in the case at hand, the Court
2

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.

advised Plaintiff that his failure to notify the Court of any change in address or failure to respond to this
Court’s Order would result in the dismissal of his Complaint. (Doc. 3.)
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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 has not responded to this Court’s Order, despite the Court specifically directing
Plaintiff to do so and advising him of the consequences for failing to respond. In fact, Plaintiff
has failed to diligently prosecute his claims, as he has not taken any action in this case since he
filed his Complaint on September 13, 2017. Additionally, Plaintiff has failed to update the Court
with his current address, despite the Court’s instruction to him regarding this obligation.
(Doc. 3, p. 3.) The Court has no means by which it can communicate with Plaintiff and is unable
to move forward with this case.
Thus, the Court should DISMISS without prejudice Plaintiff’s Section 1983 Complaint,
(doc. 1), for failure to prosecute and failure to follow this Court’s Order and DIRECT the Clerk
of Court to CLOSE this case and enter the appropriate judgment of dismissal.

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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 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.

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).
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.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s Complaint, (doc. 1), for failure to prosecute and to follow this Court’s directives and

5

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 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.
However, Plaintiff may amend the Complaint to cure any deficiencies noted in this
Report and Recommendation. See Fed. R. Civ. P. 15. Should Plaintiff seek to amend the
Complaint, Plaintiff must file the amended complaint within fourteen (14) days from the date of
this Report and Recommendation.
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Plaintiff at his last known address.
SO ORDERED and REPORTED and RECOMMENDED, this 3rd day of May, 2018.

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

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