TAPLIN v. HESTER

Civil Action No. 6:15-cv-128.

RANDY TAPLIN, Plaintiff, v. OFFICER JASON HESTER, Defendant.

United States District Court, S.D. Georgia, Statesboro Division.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 555 Prisoner - Prison Condition
Source: PACER


Attorney(s) appearing for the Case

Randy Taplin, Plaintiff, Pro Se.

Officer Jason Hester, Defendant, represented by Kelly Campanella , Dept. of Law.


ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

R. STAN BAKER, Magistrate Judge.

This matter comes before the Court on Plaintiff's failure to comply with the Court's Order of July 24, 2017, to inform the Court in writing of any potential change in his address. (Doc. 29.) For the following reasons, I RECOMMEND the Court DISMISS Plaintiff's Complaint, (doc. 1), without prejudice for Plaintiff's failure to follow this Court's Orders and failure to update his address, DISMISS as moot Defendant's Motion for Summary Judgment, (doc. 23), and DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.

BACKGROUND

Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) Concurrently, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) In granting that Motion, the Court forewarned Plaintiff that, "[w]hile this action is pending, the Plaintiff shall immediately inform this Court in writing of any change of address. Failure to do so will result in dismissal of this case, without prejudice." (Doc. 3, p. 3 (emphasis in original).) The Court directed service of Plaintiff's Complaint upon Defendant Hester based on Plaintiff's contention that Defendant Hester used excessive force against him. (Doc. 11.) The Court once again advised Plaintiff in its Order directing service of his Complaint: "Plaintiff is charged with the responsibility of immediately informing this Court and defense counsel of any change of address during the pendency of this action. Local Rule 11.1. Plaintiff's failure to notify the Court of a change in his address may result in dismissal of this case." (Doc. 11, p. 11.)

Defendant then filed a Motion for Summary Judgment, (doc. 23), to which Plaintiff responded, (doc. 25). As part of the materials submitted in support of his Motion, Defendant provided the Court with a copy of Plaintiff's deposition. (Doc. 23-5.) During his deposition, which was taken on August 23, 2016, Plaintiff testified that he was serving a six (6) year sentence, had already served more than five years of that sentence, and would "max out next year." (Id. at p. 21.) Based on Plaintiff's deposition testimony, the Court had reason to believe Plaintiff may no longer be housed at Georgia State Prison and advised Plaintiff that, if that were the case, he failed to provide the Court with an updated address, despite the Court's directives to notify it of any change in address and admonitions regarding Plaintiff's failure to do so. (Doc. 29, p. 2.) The Court directed the Clerk of Court to mail a copy of that Order to Plaintiff at his last known address and ordered Plaintiff to provide the Court with any change in his address within fourteen (14) days of that Order, up to and including August 4, 2017. (Id.) The Court forewarned Plaintiff that, should he fail to respond to this Order within this allotted time, the Court would dismiss Plaintiff's Complaint based on his failure to follow this Court's Orders. (Id.) This Order was returned to the Court with the notations "Return to Sender" and "Not at this address" on the envelope. (Doc. 30, p. 1.) Plaintiff has not responded to the Court's July 24, Order. In fact, Plaintiff has made no filings in this case since November 2, 2016, (doc. 25).

DISCUSSION

The Court must now determine how to address Plaintiff's failure to comply with this Court's directives. For the reasons set forth below, I RECOMMEND the Court DISMISS Plaintiff's Complaint without prejudice, DISMISS as moot Defendant's Motion for Summary Judgment, 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 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);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 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 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 provide the Court with any update to his address, the Court is unable to move forward with this case. In fact, the Court has no means by which to communicate with Plaintiff. Additionally, Plaintiff was given ample time to follow the Court's directive, and Plaintiff has not made any effort to do so or to inform the Court as to why he cannot comply with its directives. Indeed, Plaintiff has not made any filings in this case in over nine (9) months' time.

Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, (doc. 1), for failure to update his address and failure to follow this Court's Orders, DISMISS as moot Defendant's Motion for Summary Judgment, (doc. 23), and DIRECT the Clerk of Court to CLOSE this case.

II. 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 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 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.

CONCLUSION

For the above-stated reasons, I RECOMMEND the Court DISMISS this action without prejudice, DISMISS as moot Defendant's Motion for Summary Judgment, 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 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 Defendant and upon Plaintiff at his last known address.

SO ORDERED and REPORTED and RECOMMENDED.

FootNotes


1. 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, this Court repeatedly provided Plaintiff with notice of its intention to dismiss his case if he failed to advise the Court of any update in his address. (Doc. 3, p. 3; Doc. 11, p. 11; Doc. 29, p. 2.)

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