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

JMARKUS CARRECTER,

Plaintiff, CIVIL ACTION NO.: 6:25-cv-17

v.

DEPUTY DIRECTOR GEORGE HERRIN, JR., TYRONE OLIVER, and GREGORY DOZIER,

Defendants.

REPORT AND RECOMMENDATION When it appeared that Plaintiff did not intend to submit two separate causes of action based on the same set of facts and against the same set of Defendants, I instructed Plaintiff to file a notice of voluntary dismissal in this case. Doc. 6. Plaintiff has failed to do so. Plaintiff also has not returned the requisite financial forms. Id.; Doc. 4. As discussed in further detail below, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s cause of action, doc. 1, for failure to follow this Court’s Orders, 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). 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 Plaintiff his suit is due to be dismissed. As indicated below, Plaintiff 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- BACKGROUND Plaintiff submitted a Complaint using the

form on March 17, 2025. Doc. 1. I granted Plaintiff’s motion for leave to proceed in forma pauperis on March 19, 2025, and directed Plaintiff to return the requisite financial forms within 30 days of that Order.

Docs. 2, 4. However, Plaintiff submitted a letter to the Court, which indicates Plaintiff did not intend to initiate a new cause of action; rather, he intended to submit documents for filing in Case Number 6:25-cv-12. Doc. 5. To be sure, Plaintiff has not returned the requisite financial forms in this cause of action, but he did so in Case Number 6:25-cv-12. Carrecter v. Herrin, 6:25-cv-12 (S.D. Ga. Apr. 8, 2025), ECF Nos. 4, 5.2 Plaintiff also provided a notice of change of address in Case Number 6:25-cv-12 and not in this cause of action.

ECF No. 7 (S.D. Ga. Apr. 21, 2025). Thus, the Court directed Plaintiff to file a notice of voluntary dismissal under Federal Rule of Civil Procedure 41, as it appeared he did not intend to file two separate causes of action. Doc. 6. Plaintiff has not responded to these Orders, 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 Orders. For the reasons set forth below, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s cause of action and DENY Plaintiff leave to appeal in forma pauperis. I. Dismissal for Failure to Follow This Court’s Orders A district court may dismiss a plaintiff’s claims sua sponte based on either Federal Rule of Civil Procedure 41(b) or the court’s inherent authority to manage its docket. Link v. Wabash

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).

2 Plaintiff has filed objections to the Report and Recommendation for dismissal in Case Number 6:25-cv-12. ECF Nos. 14, 16. These are pending before the Court. R.R. Co.,

(1962);3 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

3 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 Orders could result in dismissal of this action. Doc. 4. 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 any response to its Orders, the Court cannot move forward with this case. Moreover, Plaintiff was given notice of the

consequences of his failure to follow the Court’s Order and has not done so. Thus, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s cause of action for failure to follow this Court’s Orders 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 would be appropriate to address that issue in the Court’s order of dismissal. See Fed. R. App. P. 24(a)(3) (noting 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 Orders 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 should DENY Plaintiff in forma pauperis status on appeal. CONCLUSION For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint, doc. 1, 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 Plaintiff leave to appeal in forma pauperis. 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,

, 1192-93 (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, 977 F.3d at 1192-93; 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 REPORTED and RECOMMENDED, this 7th day of August, 2025.

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