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

ANDREW JACKSON,

Plaintiff, CIVIL ACTION NO.: 6:18-cv-113

v.

ROBERT KILGORE, et al.,

Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter is before the Court on Plaintiff’s failure to timely pay his filing fee in this case and his failure to follow the Court’s December 27, 2019 Order directing him to do the same. On December 27, 2019, after Plaintiff was released from jail, this Court granted Plaintiff permission to proceed in forma pauperis and ordered Plaintiff to pay $35.00 (10% of the filing fee) within 120 days. Doc. 16. In its Order, the Court advised Plaintiff that his failure to timely submit his payment could result in the dismissal of his case. More than 120 days have passed since the December 27, 2019 Order, and Plaintiff has only paid $10.00 toward the filing fee. As laid out herein, I RECOMMEND the Court DISMISS without prejudice the Complaint, doc.1, due to Plaintiff’s failure to follow this Court’s Order and his failure to pay his filing fee, and I RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis. BACKGROUND Plaintiff brought this action under

while detained at the Bulloch County Jail. Doc. 1. He was initially granted permission to proceed in forma pauperis and was required to comply with the payment provisions of

(b)(2). Doc. 4. However, during the

pendency of this suit, Plaintiff was released from jail. Doc 12. The Court, upon learning of his release, ordered Plaintiff to either pay the full filing fee of $350.00 or file another request to proceed in forma pauperis. Doc. 13. Plaintiff thereafter submitted his application to proceed without prepaying fees, doc. 14, and on December 27, 2019, this Court ordered Plaintiff to make a partial payment of $35.00 within 120 days, doc. 16. While the Court processed a payment of $10.00 from Plaintiff on December 27, 2019, it has not received any other payments since that date. It has now been over 120 days since the December 27, 2019 Order.1 DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this Court’s December 27, 2019 Order. For the reasons set forth below, I RECOMMEND the Court

DISMISS without prejudice Plaintiff’s action, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis.

1 In addition to his Complaint, Plaintiff has filed several letter briefs, usually addressed to “whom this may concern.” Docs, 3, 7, 9-3, 15. This Court, in the past, has notified Plaintiff that his attempts to communicate with the Court via letters “are not welcome.” See Jackson v. Kile, Case Number 6:06-cv-14 (S.D. Ga. Nov. 30, 2007), ECF No. 30; see also In re Unsolicited Letters to Federal Judges,

(S.D. Ga. 2000) (“[I]f a litigant seeks judicial action of any sort . . . it must be contained within a motion arising from a properly filed lawsuit. It cannot be requested in a personal letter to a judge.”). Accordingly, Plaintiff is reminded that any relief requested via letter, as opposed to a properly filed motion, will not be considered by this Court. I. Dismissal for Failure to Follow Court’s Order A district court may dismiss a plaintiff’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); Coleman v. St. Lucie Cty.

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 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,

, 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] [w]illful 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,

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

(11th Cir. 1983)). 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,

). In 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,

; see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03. Plaintiff has failed to diligently prosecute his claims. 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). With Plaintiff having failed to comply with this Court’s December 27, 2019 Order requiring partial payment of his filing fee, the Court is unable to move forward with this case. Plaintiff was given ample time to follow the Court’s directive, and he has not made any effort to inform the Court as to why he cannot comply with its directive.

For these reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s action and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. II. Leave to Appeal in Forma Pauperis The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is appropriate to address this issue in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (providing 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 Plaintiff’s failure to follow this Court’s directive regarding his filing fee, 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 without prejudice this action, and I RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation shall file specific written objections within 14 days of the date on which this Report and Recommendation is entered. See

(b); Fed. R. Civ. P. 72(b)(2). 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

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

(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. Furthermore, it is not necessary for a party to repeat legal arguments in objections. The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp.,

(11th Cir. 2016); Mitchell v. United States,

(11th Cir. 2015). 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 Plainitff. SO ORDERED and REPORTED and RECOMMENDED, this 5th day of May, 2020.

Bor BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA