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

DAVID HODGES,

Petitioner, CIVIL ACTION NO.: 2:19-cv-88

v.

JESUP FCI WARDEN,

Respondent.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter comes before the Court upon Petitioner David Hodges’s (“Hodges”) failure to comply with the Court’s September 13, 2019 Order and Respondent’s Motion to Dismiss. Docs. 6, 7. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Hodges’s Petition for failure to follow the Court’s Order. I also RECOMMEND the Court DENY as moot Respondent’s Motion, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Hodges leave to appeal in forma pauperis.1

1 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.,

(11th Cir. 2011) (citations and internal quotation marks omitted). A magistrate judge’s Report and Recommendation provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union, 349,

(11th Cir. 2008) (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.,

(N.D. Ga. 2009) (noting that report and recommendation served as notice that claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Hodges that his suit is due to be dismissed. As indicated below, Hodges will have the opportunity to present his objections to this finding, and the presiding district judge will review de novo properly submitted objections. See

(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562,

, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s BACKGROUND On July 30, 2019, Hodges filed his

Petition for Writ of Habeas Corpus. Doc. 1. After Hodges paid the requisite filing fee, and this Court directed service of Hodges’s Petition. Doc. 2. Respondent filed his Motion to Dismiss on September 6, 2019, doc. 6, and the

Court ordered Hodges to respond to the Motion to Dismiss within 14 days of its September 13, 2019 Order, doc. 7. The Court advised Hodges if he failed to respond, the Court would determine he did not oppose the Motion, would grant it as unopposed, and deem Hodges as failing to follow a Court Order.

That Order was not returned to the Court as undeliverable or as otherwise failing to reach Hodges. Hodges did not respond to the Court’s Order within 14 days. DISCUSSION The Court must now determine how to address Hodges’s failure to comply with this Court’s Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Hodges’s Petition. I also RECOMMEND the Court DIRECT the Clerk of Court to

CLOSE this case and enter the appropriate judgment of dismissal and DENY Hodges leave to appeal in forma pauperis. I. Dismissal for Failure to Follow this Court’s Order A district court may dismiss a petitioner’s claims for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to manage its docket. Link v. Wabash R.R. Co.,

(1962);2 Coleman v. St. Lucie Cty.

report and recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond).

2 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.”

. However, in this case, Hodges was Jail,

, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V MONADA,

(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,

, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks,

(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,

(11th Cir. 2006) (quoting Jones v. Graham,

(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.,

, 625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem. Ass’n (Lux.),

(11th Cir. 1995)); see also Taylor v. Spaziano,

(11th Cir. 2007) (citing Morewitz,

). By contrast, dismissal without prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are

forewarned of the consequences of failing to respond to the Motion to Dismiss and this Court’s Order. Doc. 7. afforded greater discretion in dismissing claims in this manner. Taylor,

; 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, where plaintiff did not respond to court order to supply defendant’s current address for purpose of service); Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal). Hodges failed to follow this Court’s Order or to otherwise respond to the Motion to Dismiss, despite having ample opportunity to do so and being forewarned of the consequences of his failure to do so. Doc. 7. Thus, the Court should DISMISS without prejudice Hodges’s § 2241 Petition. Doc. 1. II. Leave to Appeal in Forma Pauperis

The Court should also deny Hodges leave to appeal in forma pauperis. Though Hodges has not yet filed a notice of appeal, it would be appropriate to address that issue in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal 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, either before or after the notice of appeal is filed, that the appeal is not taken in good faith.

(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,

(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,

(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,

(1989); Carroll v. Gross,

(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,

(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001,

, at *1–2 (S.D. Ga. Feb. 9, 2009). Based on the above analysis of Hodges’s failure to follow this Court’s directive, 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 Hodges in forma pauperis status on appeal. CONCLUSION I RECOMMEND the Court DISMISS without prejudice Hodges’s Petition for failure to follow the Court’s Order. I further RECOMMEND the Court DENY as moot Respondent’s Motion, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Hodges leave to appeal in forma pauperis. 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 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. See

(b)(1)(C); Thomas v. Arn,

(1985). 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 Court DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon the parties. SO ORDERED and REPORTED and RECOMMENDED, this 16th day of March, 2020. Bou _ UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA