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

DAVIOUS BOYD,

Plaintiff, CIVIL ACTION NO.: 5:23-cv-55

v.

WARE STATE PRISON,

Defendant.

O RDE R Plaintiff has moved for permission to proceed in forma pauperis in this case, but he has failed to provide the Court with necessary information about his financial circumstances. I ordered Plaintiff to provide that information, but Plaintiff failed to do so, and the time I allowed Plaintiff to comply has expired. Therefore, as explained in more detail below, I DISMISS without prejudice Plaintiff’s Complaint, doc. 1, for failure to follow this Court’s Order and failure to prosecute, DENY as moot all pending Motions, 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

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 quotations marks omitted). As noted elsewhere, the Court forewarned Plaintiff his failure to respond to the Court’s Order would result in the dismissal of his case. Doc. 21. In addition, Plaintiff has the opportunity to respond to this Order. BACKGROUND On December 29, 2022, Plaintiff, proceeding pro se, submitted a Complaint to the District Court for the Northern District of Georgia. Doc. 1. That court transferred Plaintiff’s Complaint to this Court on June 15, 2023. Docs. 2, 5, 6. Plaintiff did not pay the required filing

fee or move to proceed in forma pauperis when filing this action or upon the transfer to this Court. Accordingly, on June 15, 2023, the Clerk of Court directed Plaintiff to either pay the $402.00 filing fee or file a motion to proceed in forma pauperis. Doc. 8. The Clerk warned Plaintiff his failure to comply with that notice within 21 days may result in dismissal of this action. On this same date, June 15, 2023, the Court issued an Order notifying Plaintiff of the availability of a Magistrate Judge to have jurisdiction over his case. Doc. 9. The Court instructed Plaintiff he was to return the form regarding consent within 14 days and advised his failure to return this form could result in the imposition of sanctions. Id. at 2. When Plaintiff failed to return the consent form or a motion for leave to proceed in forma pauperis, I issued a

Report on July 12, 2023, recommending the Court dismiss without prejudice Plaintiff’s Complaint based on his failure to follow this Court’s directives and to prosecute. Doc. 15. Plaintiff then returned the statement regarding assignment and consented to my plenary review. Doc. 16. Plaintiff also filed his Motion for Leave to Proceed in Forma Pauperis. Doc. 17. I deferred ruling on Plaintiff’s Motion and declined to vacate the July 12, 2023 Report and Recommendation because Plaintiff did not provide any information relating to his prison trust account. Doc. 21. I gave Plaintiff 14 days to provide the Court with his necessary financial information and again warned Plaintiff his failure to comply with the Court’s Order would result in the dismissal of his cause of action. Id. There is nothing indicating this Order was returned to the Court or otherwise failed to reach Plaintiff. Plaintiff has not submitted the requisite financial forms, and the time to do so has elapsed. DISCUSSION The Court must now determine how to address Plaintiff’s failure to comply with this

Court’s Order and failure to prosecute. For the reasons set forth below, the Court DISMISSES without prejudice Plaintiff’s Complaint and DENIES Plaintiff leave to appeal in forma pauperis. I. Dismissal for Failure to Follow This Court’s Order and to Prosecute A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal Rule of Civil Procedure 41(b) or 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

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.”

. Nonetheless, in the case at hand, the Court advised Plaintiff his failure to comply with the Court’s Order would result in dismissal of this action. Doc. 21. 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 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 § 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 § 1983 claims where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff non-compliance could lead to dismissal). With Plaintiff having failed to provide the Court with necessary financial documents or otherwise respond to the Court’s Order, the Court cannot move forward with this case. See

& 1915. Moreover, Plaintiff was given notice of the consequences of his failure to follow the Court’s Order, and Plaintiff has not done so. Thus, the Court DISMISSES

without prejudice Plaintiff’s Complaint for failure to follow this Court’s Order and failure to prosecute and DIRECTS the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. II. Leave to Appeal in Forma Pauperis The Court also denies Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is 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 Plaintiff's failure to follow this Court’s Order and failure to prosecute, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court DENIES Plaintiff in forma pauperis status on appeal. CONCLUSION For the above-stated reasons, I DISMISS without prejudice Plaintiff's Complaint for failure to follow this Court’s Order and failure to prosecute, 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. SO ORDERED, this 23rd day of August, 2023.

BO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA