Mitchell v. Dozier et al

Filing 13

ORDER adopting 12 Report and Recommendations. The Court dismisses Plaintiff's claims: that Defendants have implanted transmitters into Plaintiff and all claims related to those allegations; for monetary damages against Defendants in their official capacities; and against Defendant Gregory Dozier in their entirety. The Court dismisses without prejudice Plaintiff's remaining claims, directs the Clerk of Court to close this case and enter the appropriate judgment of dismissal, and denies Plaintiff in forma pauperis status on appeal. Signed by Chief Judge J. Randal Hall on 10/30/2018. (thb)

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

KARL C. MITCHELL,
CIVIL ACTION NO.: 6:18-cv-4

Plaintiff,
V.

GREGORY DOZIER,et al.,
Defendants.

ORDER

The Court has conducted an independent and de novo review of the entire record and

concurs with the Magistrate Judge's Report and Recommendation,(doc. 12). Plaintiff did not file
Objections to this Report and Recommendation. Accordingly,the Court ADOPTS the Report and
Recommendation as the opinion of the Court. Thus, the Court DISMISSES Plaintiffs claims:

that Defendants have implanted transmitters into Plaintiff and all claims related to those
allegations; for monetary damages against Defendants in their official capacities; and against
Defendant Gregory Dozier in their entirety.
In addition, the Magistrate Judge directed Plaintiff to return his prisoner trust account
statement and collection offees from trust account forms within thirty(30)days of the August 13,

2018, Order. (Doc. 12, p. 7.) The Magistrate Judge warned Plaintiff that his failure to return the

required forms would result in the dismissal of Plaintiffs claims without prejudice based on his
failure to prosecute and to follow this Court's Orders. (Id) The Magistrate Judge also advised
Plaintiff his claims arising from events occurring in January 2017, claims arising from events
occurring in September 2017, and his Eighth Amendment claims were unrelated to each other and

the other allegations in his Complaint. (Id. at p. 13.) Nevertheless, the Magistrate Judge afforded
Plaintiff the opportunity to amend his Complaint, provided detailed instructions as to how he
should amend his Complaint, and directed the Clerk of Court to forward a blank copy of a 42

U.S.C.§ 1983 form to Plaintiff. (Id. at pp. 14-15.) The Magistrate Judge also forewarned Plaintiff
his failure to file an Amended Complaint in a timely manner would result in the dismissal of his
cause of action. (Id at p. 15.)

A district court may dismiss a plaintiffs 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.

Linkv. WabashR.R. Co.. 370 U.S. 626(1962);' Coleman v. St. Lucie Ctv. Jail. 433 F. App'x 716,
718(11th Cir. 2011)(citing Fed. R. Civ. P. 41(b)and Bettv K Agencies. Ltd. v. MTV MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the involuntary

dismissal of a plaintiffs 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 Kileo 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 ofthe 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)).

' 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 file his prisoner trust account forms or an appropriate Amended
Complaint would result in the dismissal of his Complaint. (Doc. 12.)

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 Ctv. Bd. of Educ.. 170 F. App'x 623, 625-26 (11th Cir.

2006)(quoting Morewitz v. West ofEng. Shin Owners Mut. Prot. & Indem. Ass'n (Lux.),62 F.3d
1356,1366(11th Cir. 1995")^: see also Tavlor 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; therefore, courts are afforded greater discretion in
dismissing claims in this manner. Tavlor. 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.

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); Tavlor. 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).
As noted above, this Court issued an Order directing Plaintiff to return his prisoner trust

account forms, to amend his Complaint, and provided specific instructions as to how Plaintiff

could amend his Complaint. (Doc. 12.) The Court warned Plaintiff in its Order that, if he did not

follow this Court's instructions, the Court could dismiss his case for failure to follow this Court's

Order and failure to prosecute. (Id, at pp. 7, 14-15.) Nevertheless, Plaintiff ignored the Court's
instructions and did not file any response to this Court's August 13,2018, Order. In fact. Plaintiff
has taken no action in this case since February 22, 2018. (Doc. 10.) Consequently, the Court

DISMISSES without prejudice Plaintiffs remaining claims, DIRECTS the Clerk of Court to
CLOSE this case and enter the appropriatejudgment of dismissal, and DENIES Plaintiff informa

pauperis status on appeal.^
SO ORDERED,this

day of October, 2018.

J. RANDAL HALL,CHIEF JUDGE

UNITEDyrATES DISTRICT COURT
THERN district of GEORGIA

^ An appeal cannot be taken informa pauperis ifthe 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 bejudged by an
objective standard. Busch v. Countv 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.
Copoedge 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 informa 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. 2002k 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 Plaintiffs action, there are
no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith.