Opinion
NO. 4:15-CR-00025-CDL-MSH NO. 4:18-CV-00227-CDL-MSH
02-03-2020
JERALD T. FLAKES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
Pro se Petitioner Jerald T. Flakes, an inmate most recently confined at the Federal Correctional Institution in Forrest City, Arkansas, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 39). For the hereinbelow reasons, the Court recommends that Petitioner's motion be dismissed.
BACKGROUND
The Court received Petitioner's motion to vacate (ECF No. 39) on November 8, 2018. In his one-page motion, styled as a letter, Petitioner argues the United States Bureau of Prisons improperly calculated his sentence length and, therefore, unconstitutionally prolonged his sentence. Mot. to Vacate 1, ECF No. 39. On August 8, 2019, the Court ordered Petitioner to recast his motion on the Court's standard form for motions under 28 U.S.C. § 2255 within twenty-one days. Order 1-2, ECF No. 40. The Court also ordered him "to notify the Court in writing of any change in his mailing address." Id. at 2. The Court informed Petitioner that "[f]ailure to fully and timely comply with this Order may result in the dismissal of Petitioner's motion." Id. Petitioner failed to recast his motion or notify the Court of any address change.
On September 19, 2019, the Court's Order, which had been mailed to Petitioner, was returned as undeliverable. Mail Return, ECF No. 41. On November 1, 2019, the Court ordered Petitioner to show cause why his motion should not be dismissed for failure to comply with the Court's Order to recast his complaint and update the Court of any address change. Order 1-2, ECF No. 42. The Court afforded Petitioner twenty-one days to comply. Id. at 2. Petitioner failed to respond, and the Court's Order was again returned as undeliverable. Mail Return, Nov. 22, 2019, ECF No. 43.
A search of the U.S. Bureau of Prisons inmate locator shows Petitioner was released on January 25, 2019. See U.S. Bureau of Prisons, Find an Inmate, BOP.GOV, https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last visited Feb. 3, 2020). --------
DISCUSSION
The Court recommends that Petitioner's motion to vacate be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for Petitioner's failure to comply with the Court's Orders to recast his motion and update the Court of his address.
I. Rule 41(b) Standard
"The district court possesses the inherent power to police its docket." Collins v. Lake Helen, L.P., 249 F. App'x 116, 120 (11th Cir. 2007) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). "Rule 41(b) authorizes a district court to dismiss a complaint for failure to prosecute or failure to comply with a court order or the federal rules." See, e.g., Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Under Rule 41(b), a court may dismiss a plaintiff's claim sua sponte, or "a defendant may move to dismiss the action or any claim against it" for a plaintiff's failure to prosecute or comply.
"Dismissal of a case . . . is considered a sanction of last resort, applicable only in extreme circumstances." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). "Dismissal under [Rule 37 and 41], while an extreme sanction, is appropriate where a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and the district court specifically finds that lesser sanctions would not suffice." Pippen v. Georgia-Pacific Gypsum, LLC, 408 F. App'x 299, 303 (11th Cir. 2011) (internal quotation marks and citation omitted). "Although it must find that lesser sanctions would not suffice to remedy the inappropriate conduct, the district court's finding can be explicit or implicit." Collins, 249 F. App'x at 120 (citations omitted).
II. Petitioner's Motion to Vacate
Here, the Court ordered Petitioner to recast his motion and keep the Court updated of his address. Order 1-2, Aug. 8, 2019. Petitioner failed to comply with the order to recast his motion. When the Clerk attempted to serve Petitioner by mail with a copy of the Court's Order, the mail was returned as undeliverable. Mail Return, Sept. 19, 2019. Therefore, Petitioner also failed to comply with the order to update his address. The Court then ordered Petitioner to show cause. Order 1-2, Nov. 1, 2019. Petitioner failed to comply, and the Order was again returned as undeliverable. Mail Return, Nov. 22, 2019.
Petitioner has not filed any documents with the Court since he filed his motion (ECF No. 39) on November 8, 2018. He did not recast his motion. He has not advised the Court of his address change, and all mail sent to him has been returned as undeliverable. Therefore, Petitioner has failed to comply with the Court's August 8, 2019, Order and the Court's November 1, 2019, Order to show cause. The failure to comply with the Court's order to advise of an address change is grounds for dismissal under Rule 41(b). See, e.g., Hollis v. Paulk, No. 7:07-CV-97 (HL), 7:07-CV-97 (HL), at *1 (M.D. Ga. May 17, 2010), report and recommendation adopted by 2010 WL 2331458 (M.D. Ga. June 8, 2010) (recommending that defendants' motion to dismiss a pro se prisoner plaintiff's complaint under Rule 41(b) be granted where plaintiff failed to advise the Court of his address change, and his mail was returned as undeliverable).
The Court finds that Petitioner has engaged in a pattern of willful contempt through his failure to comply with the Court's multiple orders and failure to prosecute this action. The Court has considered lesser sanctions under Rule 41. Here, however, lesser sanctions would not suffice because the Court is unable to communicate with Petitioner without his address, and both the Court and Respondents face delays as a result. In the interests of judicial economy and avoiding undue delay and prejudice, Petitioner's motion should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
CONCLUSION
For the foregoing reasons, the Court recommends that Petitioner's motion to vacate (ECF No. 39) be dismissed. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 3rd day of February, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE