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

DANTE G. FREDRICK,

Petitioner, CIVIL ACTION NO.: 2:20-cv-60

v.

STATE OF GEORGIA,

Respondent.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter comes before the Court upon Petitioner Dante Fredrick’s (“Fredrick”) failure to comply with the Court’s August 17, 2020 Order and Respondent’s Motion to Dismiss. Docs. 7, 9. For the following reasons, I RECOMMEND the Court DISMISS Fredrick’s

Petition without prejudice for failure to follow the Court’s Order, DENY as moot Respondent’s Motion to Dismiss, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Fredrick leave to appeal in forma pauperis and a Certificate of Appealability.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 Fredrick that his suit is due to be dismissed. As indicated below, Fredrick 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. Fredrick, No. 1:12-CV-3562,

, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s BACKGROUND On June 8, 2020, Fredrick filed his

Petition for Writ of Habeas Corpus to challenge his October 2019 amended sentences obtained in Glynn County, Georgia. Doc. 1. Fredrick also filed a motion for leave to proceed in forma pauperis. Doc. 2. This Court granted

Fredrick’s motion and directed service of his Petition. Docs. 3, 4. Respondent filed a Motion to Dismiss and states Fredrick did not exhaust his available state remedies, as he did not file a direct appeal or a state collateral attack on these amended sentences. Doc. 7. The Court ordered Fredrick to respond to the Motion to Dismiss within 14 days of its August 17, 2020 Order, doc. 9. The Court advised Fredrick if he failed to respond, the Court would determine he did not oppose the Motion, would grant it as unopposed, and deem Fredrick as failing to follow a Court Order.

This Order was not returned to the Court as undeliverable or as otherwise failing to reach Fredrick. Fredrick did not respond to the Court’s Order or Respondent’s Motion to Dismiss. Fredrick has not submitted anything to the Court in over two months’ time. Doc. 5. DISCUSSION

The Court must now determine how to address Fredrick’s failure to comply with this Court’s Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Fredrick’s Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Fredrick leave to appeal in forma pauperis and a Certificate of Appealability. I. Dismissal for Failure to Prosecute and 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) and the court’s inherent authority to manage its docket.

report and recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond). Link v. Wabash R.R. Co.,

(1962);2 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 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

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, Fredrick was forewarned of the consequences of failing to timely comply with this Court’s Order. Doc. 9. 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). Fredrick has not responded to this Court’s Order, despite being given ample notice of the consequences of his failure to follow the Court’s Order. In fact, Fredrick has not made any effort to do so or to otherwise prosecute this case. Thus, the Court should DISMISS without prejudice Fredrick’s § 2254 Petition. Doc. 1. II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

The Court should also deny Fredrick leave to appeal in forma pauperis and deny him a Certificate of Appealability. Though Fredrick has not yet filed a notice of appeal, it would be appropriate to address these issues in the Court’s order of dismissal. Pursuant to Rule 11 of the Rules Governing § 2254 Cases, “the district court must issue or deny a certificate of appealability when it issues a final order adverse to the applicant.” See also 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.

(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); Brown v. United States, Nos. 407CV085, 403CR001,

, at *1–2 (S.D. Ga. Feb. 9, 2009). Additionally, under

(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a Certificate of Appealability is issued. A Certificate of Appealability may issue only if the applicant makes a substantial showing of a denial of a constitutional right. The decision to issue a Certificate of Appealability requires “an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,

(2003). In order to obtain a Certificate of Appealability, a petitioner must show “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.”

“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack v. McDaniel,

(2000); see also Franklin v. Hightower,

(11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Miller-El,

. Based on the above analysis of Fredrick’s failure to follow this Court’s Order and applying the Certificate of Appealability standards set forth above, there are no discernable issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability. Furthermore, as there are no non-frivolous issues to raise on appeal,

an appeal would not be taken in good faith. Thus, the Court should likewise DENY Fredrick in forma pauperis status on appeal. CONCLUSION I RECOMMEND the Court DISMISS Fredrick’s Petition without prejudice for failure to follow the Court’s Order, DENY as moot Respondent’s Motion to Dismiss, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Fredrick leave to appeal in forma pauperis and a Certificate of Appealability. The Court instructs 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. 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. SO REPORTED and RECOMMENDED, this 17th day of September, 2020.

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