Helfrich v. Jackson
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint for 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. 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 12/6/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 11/22/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:17-cv-123
SGT. K. JACKSON,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Smith State Prison in Glennville, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement.
(Doc. 1.) For the reasons set forth below, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis. (Doc. 3.) In addition, I RECOMMEND the Court DISMISS
without prejudice Plaintiff’s Complaint for 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.
Plaintiff filed his Complaint on September 15, 2017, and a Motion for Leave to Proceed
in Forma Pauperis shortly thereafter. (Docs. 1, 3.) On October 16, 2017, the Court deferred
ruling on Plaintiff’s in forma pauperis Motion and directed Plaintiff to file an Amended
Complaint and to re-file his Motion for Leave to Proceed in Forma Pauperis using the correct
The Court warned Plaintiff that a failure to properly amend or file an
appropriate in forma pauperis Motion would result in dismissal. (Id.) Despite these warnings,
Plaintiff failed to file any amendment to his Complaint or submit an appropriate application for
leave to proceed in forma pauperis.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys. . . .”) (quoting Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested
that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”).
Dismissal for Failure to Follow this Court’s Orders
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, 630–31 (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 comply with the Federal
Rules of Civil Procedure, a court order, or local rules. Fed. R. Civ. P. 41(b); see 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 . . . with
or without prejudice [for] willful disobedience or neglect of any order of the Court.”).
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.
It is true that dismissal with prejudice for failure to follow court orders is a “sanction . . .
applicable only in extreme circumstances” and requires that a court “(1) [make] a clear record of
willful conduct and (2) a finding that lesser sanctions are inadequate.” Baltimore v. Jim Burke
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
advised Plaintiff that his failure to respond to this Court’s Order would result in dismissal of this action.
Motors, Auto., 300 F. App’x 703, 707 (11th Cir. 2008) (per curiam) (citing Betty K Agencies,
Ltd., 432 F.3d at 1339, and quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)).
see also McIntosh v. Gauthier, 182 F. App’x 884, 886–87 (11th Cir. 2006) (same) (citing
McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 2008)). By contrast, dismissal
without prejudice for failure to follow a court order is not an adjudication on the merits, and,
therefore, courts are afforded greater discretion in dismissing claims in this manner. See Taylor
v. Spaziano, 251 F. App’x 616, 619 (11th Cir. 2007); see also Fed. R. Civ. P. 41(b) (providing
that an involuntary dismissal for failure to comply with a court order is an adjudication on the
merits, unless the district court “states otherwise”); Brown, 205 F. App’x at 802 (noting that
dismissal without prejudice under Rule 41(b) is generally not an abuse of discretion).
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See 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), see also Taylor, 251 F. App’x at 620–21 (upholding dismissal without
prejudice for failure to follow a court order and for failure to prosecute, where plaintiffs failed to
follow the court’s specific instructions on how to amend their deficient complaint, instead
submitting an amended complaint that contained the same deficiencies as the original); cf. Moon
v. Newsome, 863 F.2d 835, 837–39 (11th Cir. 1989) (upholding dismissal with prejudice for
failure to follow a court order of a pro se plaintiff’s Section 1983 claim, where plaintiff,
proceeding in forma pauperis, failed to follow a discovery order and refused to comply with a
This Court issued an Order directing Plaintiff to amend his Complaint and file an
appropriate Motion for Leave to Proceed in Forma Pauperis. (Doc. 4.) The Court warned
Plaintiff that failure to abide by these directives would result in dismissal of his case. (Id. at
However, Plaintiff failed to make either filing.
Accordingly, the Court should
DISMISS without prejudice Plaintiff’s Complaint for failure to follow this Court’s Orders.
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 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.
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis, (doc. 3). Furthermore, I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s Complaint, 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
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 22nd day of
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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