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

CURTIS PIERCE; and VIVIAN F. PIERCE,

Plaintiffs, CIVIL ACTION NO.: 5:21-cv-8

v.

WAYCROSS POLICE DEPARTMENT, et al.,

Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This matter comes before the Court upon Plaintiffs’ failure to comply with the Court’s May 12, 2021 Order. Doc. 6. For the following reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiffs’ Amended Complaint for failure to follow this Court’s Order, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiffs leave to appeal in forma pauperis.1 I DENY as moot Plaintiffs’ Motion for Leave to Proceed in Forma Pauperis. Doc. 5.

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 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 report and recommendation served as notice claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiffs their suit is due to be dismissed. As indicated below, Plaintiffs will have the opportunity to present their 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 magistrate judge’s report and recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond). BACKGROUND Plaintiffs filed this cause of action on January 22, 2021. Doc. 1. Plaintiffs filed a Motion for Leave to Proceed in Forma Pauperis on February 18, 2021. Doc. 5. Because of deficiencies in Plaintiffs’ Complaint and Motion, the Court ordered Plaintiffs to submit an Amended Complaint and application to proceed in forma pauperis within 14 days on May 12, 2021.

Doc. 6. The Court explained that Plaintiffs must identify each intended Defendant by name or sufficient details to describe the individual and that the Amended Complaint must describe each alleged violation committed by each Defendant.

. The Court deferred ruling on Plaintiffs’ Motion to Proceed in Forma Pauperis until Plaintiffs returned the proper Court- approved forms for non-prisoner plaintiffs.

Plaintiffs submitted an Amended Complaint on June 7, 2021, but Plaintiffs have not submitted a proper application to proceed in forma pauperis. Plaintiffs have likewise not paid the filing fee for this action. DISCUSSION The Court must now determine how to address Plaintiffs’ failure to comply with this Court’s Order. For the reasons set forth below, I RECOMMEND the Court DISMISS without

prejudice Plaintiffs’ Complaint. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiffs leave to appeal in forma pauperis. I. Dismissal for Failure to Follow This 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) and the court’s inherent authority to manage its docket. Link v. Wabash R.R. Co.,

(1962);2 Coleman v. St. Lucie Cnty. 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] 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 dismissal with prejudice for failure to prosecute is a “sanction . . . to be utilized

only in extreme situations” and requires a court to “(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 Cnty. 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 afforded greater

2 In Wabash, the Court held 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, Plaintiffs were forewarned of the consequences of failing to comply with this Court’s Order. Doc. 6. 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). Plaintiffs’ Amended Complaint does not comply with this Court’s previous instructions. Doc. 8. Plaintiffs have failed to even list the Defendants they intend to sue. The Court cannot discern from Plaintiffs’ Amended Complaint the wrongs about which they are complaining. Additionally, Plaintiffs did not fill out any of the required fields in the complaint form. Plaintiffs have also not returned the application to proceed in forma pauperis. Plaintiffs failed to follow

this Court’s Order, despite having ample opportunity to do so and being forewarned of the consequences of their failure to do so. Doc. 6. Thus, the Court should DISMISS without prejudice Plaintiffs’ Amended Complaint. Doc. 8. II. Leave to Appeal in Forma Pauperis The Court should also deny Plaintiffs leave to appeal in forma pauperis. Though Plaintiffs have 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 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, 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.” Moore v. Bargstedt,

(11th Cir. 2006) (quoting Bilal v. Driver,

(11th Cir. 2001)); see also Brown v. United States, Nos. 407CV085, 403CR001,

, at *1–2 (S.D. Ga. Feb. 9, 2009). Based on the above analysis of Plaintiffs’ failure to follow this Court’s Order and pay the filing fee in this 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 Plaintiffs in forma pauperis status on appeal. CONCLUSION I RECOMMEND the Court DISMISS without prejudice Plaintiffs’ Amended Complaint for failure to follow the Court’s Order and pay the filing fee, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiffs leave to appeal in forma pauperis. I DENY as moot Plaintiffs’ Motion for Leave to Proceed in Forma Pauperis. Doc. 5. Any objections to this Report and Recommendation shall be filed within 14 days of today’s date. Objections shall be specific and in writing. Any objection that the Magistrate Judge failed to address a contention raised in the Complaint must be included. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge’s factual findings and legal conclusions.

(b)(1)(C); Harrigan v. Metro Dade Police Dep’t Station #4,

(11th Cir. 2020). To be clear, a party waives all rights to challenge the Magistrate Judge’s factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan,

; 11th Cir. R. 3-1. 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 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. SO ORDERED and REPORTED and RECOMMENDED, this 6th day of October, 2021.

Bo BENIAMIN W. CHEESBRO. UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA