SNIPES v. ALLEN et al

Filing 19

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, for failure to prosecute. It is further RECOMMENDED that the Court DENY Plaintiff leave to appeal in forma pauperis and DIR ECT the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case. 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 7/23/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/9/2018. (csr)

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

RODRECEUS SNIPES,
Plaintiff,

CIVIL ACTION NO.: 6:18-cv-51

v.
WARDEN MARTY ALLEN; and
TREVONZA BOBBITT,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff’s failure to keep the Court apprised of
any change in his address and his failure to prosecute this action. For the following reasons, I
RECOMMEND that the Court DISMISS without prejudice Plaintiff’s Complaint, (doc. 1), for
Plaintiff’s failure to prosecute. 1 I further RECOMMEND that the Court DENY Plaintiff leave
to appeal in forma pauperis and DIRECT the Clerk of Court to enter the appropriate judgment
of dismissal and to CLOSE this case. 2

1

As noted below, because Plaintiff has not violated a Court Order, this dismissal shall not constitute a
strike under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321.

2

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 marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) 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) (per curiam) (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 R&R served as notice that claims would be sua
sponte dismissed). This R&R constitutes fair notice to Plaintiff that his suit is barred and due to be
dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this
finding, and the District Court 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

BACKGROUND
On January 1, 2018, Plaintiff, proceeding pro se, filed a Complaint in the Middle District
of Georgia contesting the conditions of his confinement pursuant to 42 U.S.C. § 1983. (Doc. 1.)
With his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis, which the Middle
District granted. (Docs. 2, 5.) Plaintiff, however, failed to complete the in forma pauperis
process by not paying the initial partial filing fee. (Doc. 11.) The Court warned Plaintiff that
failure to comply with his obligation to pay the initial partial filing fee “may result in the
dismissal of [his] case.” (Id.; see also Doc. 5.) In response, Plaintiff notified the Court that he
lacked the necessary funds to pay the fee, and, after reviewing Plaintiff’s Complaint, the Middle
District ordered the case transferred to this District because the events giving rise to Plaintiff’s
claims occurred here, in the Southern District of Georgia. (Docs. 12, 13.)
On April 24, 2018, Plaintiff’s case was transferred to this District, and the Court mailed
Plaintiff a Notice of Transfer to his address of record. (Docs. 14, 15.) The Notice of Transfer,
however, was returned as undeliverable at Plaintiff’s address with a notation that the mail was
refused and not able to be forwarded. (Docs. 16, 17, 18.) To date, Plaintiff has not notified the
Court of his change of address or made any effort to inform the Court of his whereabouts.
Further, Plaintiff has still not submitted the necessary forms required to proceed in forma
pauperis. Indeed, Plaintiff has not taken any action in this case since he notified the Middle
District of his inability to pay the initial partial fee over two months ago.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to prosecute this case
and to comply with his obligations to proceed in forma pauperis and to keep the Court apprised

5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s R&R constituted adequate
notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond).
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of any change in his address. For the reasons set forth below, I RECOMMEND that the Court
DISMISS without prejudice Plaintiff’s Complaint and DENY Plaintiff leave to appeal in forma
pauperis.
I.

Dismissal for Failure to Prosecute
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); 3 Coleman v. St. Lucie Cty. Jail, 433 F.
App’x 716, 718 (11th Cir. 2011) (per curiam) (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. 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.”). 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) (per curiam)
(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
3

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.
3

sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (per curiam) (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) (per curiam) (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 Plaintiff having failed to update the Court with his current address, the Court has no
means by which it can communicate with Plaintiff. Thus, the Court is unable to move forward
with this case. Moreover, Plaintiff has failed to diligently prosecute his claims, as he has not
taken any action in this case in over two months. And although Plaintiff did properly respond to
the Middle District’s Order regarding his deficient in forma pauperis filing fee, (docs. 11, 12), he
has failed to move forward with the in forma pauperis process in this Court. Accordingly, in

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light of Plaintiff’s failure to prosecute his case, the Court should DISMISS without prejudice
Plaintiff’s Complaint. 4 However, because Plaintiff duly responded to the Middle District’s
Order regarding his deficient filing fee, the Court finds that his negligent failure to update his
address and to prosecute is not an abuse of judicial process; this dismissal shall not constitute a
strike under the PLRA.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 5 Though Plaintiff

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

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 thus
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.

4

The Court notes that, in some cases, a dismissal without prejudice can be tantamount to a dismissal with
prejudice. Jenkins v. Hutcheson, 708 F. App’x 647, 648 n.1 (11th Cir. 2018). Nonetheless, because
Plaintiff has over seven weeks to refile his claims before the applicable statute of limitations runs, it does
not appear that Plaintiff’s case presents such a situation.
5

A certificate of appealability is not required in this Section 1983 action.
5

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

I further

RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis and DIRECT
the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case.
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. 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

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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 the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of July, 2018.

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

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