Clayton v. Davidson et al

Filing 21

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, 11 as amended, without prejudice for Plaintiff's failure to follow this Court's Orders and failure to prosecute and DIRECT the Cl erk of Court to CLOSE this case and enter 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 7/30/2019). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge Benjamin W. Cheesbro on 7/16/2019. (csr)

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

EARNEST BARNARD CLAYTON,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-149

v.
DAVIDSON, et al.,
Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s failure to pay the filing fee in this case,
Plaintiff’s failure to file an Amended Complaint, and his corresponding failure to follow the
Court’s May 29, 2019 Order directing him to do the same. As explained in that Order, doc. 20,
Plaintiff has sufficient resources to pay the filing fee, and the Court instructed Plaintiff that his
failure to pay the filing fee by June 19, 2019 would result in the dismissal of his case. As of the
date of this Order, Plaintiff has not paid the filing fee. For the following reasons, I
RECOMMEND the Court DISMISS Plaintiff’s Complaint, as amended, docs. 1, 11, without
prejudice for Plaintiff’s failure to follow this Court’s Orders and failure to prosecute 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.
BACKGROUND
Plaintiff filed this cause of action pursuant to 42 U.S.C. § 1983 contesting certain events
occurring during his confinement at Georgia State Prison in Reidsville, Georgia. Doc. 1.

Plaintiff simultaneously filed a motion to proceed in forma pauperis, doc. 2, and an
accompanying inmate account statement, doc. 3. While this account statement reflected that
Plaintiff did not have sufficient assets to pay the filing fee, the Magistrate Judge denied
Plaintiff’s motion and recommended the Court dismiss Plaintiff’s Complaint as barred by the
three strikes provision of 28 U.S.C. § 1915(g), doc. 5.
Plaintiff then objected to the Report and Recommendation, doc. 9, and the Court granted
Plaintiff leave to amend his Complaint, doc. 10. Plaintiff filed an Amended Complaint, doc. 11,
as well as two additional motions to amend, docs. 15, 18. Plaintiff also filed a motion to deduct
the filing fee. Doc. 19. That motion indicated that Plaintiff had sufficient resources to pay the
filing fee in this case. Accordingly, the Court denied Plaintiff leave to proceed in forma
pauperis, granted Plaintiff leave to amend his Complaint, and ordered Plaintiff to pay the
requisite filing fee and file a single, consolidated Complaint by June 19, 2019. Doc. 20. The
Court further informed Plaintiff that failure to comply with the Court’s Order would result in his
Complaint being dismissed without prejudice. Id. at 5. As of the date of this Order and Report
and Recommendation, Plaintiff has yet to pay the filing fee or file an Amended Complaint.
DISCUSSION
The Court now addresses Plaintiff’s failure to comply with this Court’s directive. For the
reasons set forth below, I RECOMMEND the Court DISMISS Plaintiff’s Complaint without
prejudice, 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.
I.

Dismissal for Failure to Prosecute and 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.

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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)). 1 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)).
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

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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. 20.
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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 § 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). With Plaintiff having failed to
file a response 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.
Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
as amended, docs. 1, 11, 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.
II.

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

has not yet filed a notice of appeal, it is proper to address these issues in the Court’s order of

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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 that the Court DISMISS this action
without prejudice and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case. I further RECOMMEND that 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

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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 16th day of July, 2019.

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

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