Williams v. Georgia Department of Corrections et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Petitioner's 1 Petition for Writ of Habeas Corpus, for failure to follow this Court's Order and for failure to prosecute. It is further RECOMM ENDED that the Court DENY Petitioner a certificate of appealability and DENY 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 1/26/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2018. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
Scott L. Poff, Clerk
United States District Court
By staylor at 12:17 pm, Jan 12, 2018
GRADY RENARD WILLIAMS, JR.,
CIVIL ACTION NO.: 6:17-cv-150
GEORGIA DEPARTMENT OF
CORRECTIONS, et al.,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Petitioner’s failure to comply with the Court’s
November 28, 2017, directive to pay the required filing fee or to move to proceed in forma
pauperis. (Doc. 2.) For the below reasons, I RECOMMEND that the Court DISMISS without
prejudice Petitioner’s Petition, (doc. 1), for his failure to follow this Court’s Order and for
failure to prosecute. I further recommend that the Court DENY Petitioner a certificate of
appealability and DENY leave to appeal in forma pauperis.
Petitioner, an inmate at Jenkins Correctional Facility in Millen, Georgia, brought this
action on November 21, 2017. (Doc. 1.) However, Petitioner did not pay the $5.00 filing fee
associated with habeas corpus actions or move to proceed in forma pauperis. Thus, the Court
issued a Deficiency Notice advising Petitioner that he must pay the filing fee or submit a
properly completed motion to proceed in forma pauperis within 21 days from the date of the
Notice. (Doc. 2.) The Court mailed the Notice to Petitioner’s last known address at Jenkins
Correctional Facility and attached to the Notice a form application to proceed in forma pauperis.
(Id.) The Notice was not returned as undeliverable. However, Petitioner has not provided the
required filing fee or moved to proceed in forma pauperis. The only action he has taken since
filing his initial Petition is to file an Amended Petition.
The Court must now determine how to address Petitioner’s failure to comply with this
Court’s directive. For the reasons set forth below, I recommend that the Court DISMISS
Petitioner’s Habeas Corpus Petition without prejudice and deny him leave to appeal in forma
Dismissal for Failure to Prosecute and Failure to Follow this Court’s Order.
A district court may dismiss a petitioner 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. 1
Link v. Wabash Railroad Company, 370 U.S. 626 (1962); 2 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
Pursuant to Rule 12 of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure
may apply to a Petitioner’s habeas Petition to the extent the Civil Rules are not inconsistent with the
Section 2254 Rules. Further, pursuant to Rule 1(b) of the 2254 Rules, the 2254 Rules may be applied to
Section 2241 Petitions.
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. However, here, the Court advised Petitioner
that his failure to remedy his filing fee deficiency would result in the dismissal of his action. (Doc. 2.)
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. Tallahasse 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.
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).
With Petitioner having failed to provide the Court with a filing fee or moved to proceed
in forma pauperis, the Court has no means to collect the filing fees in this case or to assess
Petitioner’s eligibility for in forma pauperis status. Furthermore, he has failed to diligently
prosecute his claims. Thus, Petitioner has demonstrated a clear record of delay and disregard for
this Court’s Order, and a sanction other than dismissal would not suffice to remedy his
For these reasons, the Court should DISMISS without prejudice Petitioner’s Petition for
failure to prosecute and failure to follow this Court’s Order, and this case should be CLOSED.
Leave to Appeal in Forma Pauperis
The Court should also DENY Petitioner leave to appeal in forma pauperis. Though
Petitioner 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
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. Cnty. 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 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 Petitioner’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
Petitioner in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND that the Court DISMISS without
prejudice this action 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 Petitioner 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 fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the undersigned failed to address any
contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions herein.
§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985).
See 28 U.S.C.
Objections to a Report and
Recommendation are not the proper vehicle to raise issues and arguments not previously brought
before the Court. 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 herein. Objections not meeting the
specificity requirement set out above will not be considered by the District Judge. The Clerk of
Court shall serve a copy of this Order and Report and Recommendation on Petitioner.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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