United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE
cause came on for consideration without oral argument on the
MOTION: MOTION FOR PERMISSION TO APPEAL IN FORMA
PAUPERIS AND AFFIDAVIT (Doc. No. 17)
FILED:August 13, 2019
THEREON it is RECOMMENDED
that the motion be DENIED.
March 1, 2019, Plaintiff filed a Complaint against Defendants
for deprivation of his civil rights and constitutional
violations. Doc. No. 1. On May 9, 2019, Plaintiff
filed a motion for default judgment against Defendants. Doc.
No. 8. On May 10, 2019, the undersigned issued an order
denying the motion for default because Plaintiff had failed
to properly serve Defendants. Doc. No. 9. The Court explained
how service could be effected upon Defendants pursuant to
Federal Rule of Civil Procedure 4 and advised Plaintiff that
his purported service via first class mail did not constitute
service. Doc. No. 9 at 2.
10, the Court issued an Order to Show Cause directing
Plaintiff to show cause why the case should not be dismissed
for want of prosecution and for failure to comply with
Federal Rule of Civil Procedure 4(m). Doc. No. 12. Plaintiff
was advised failure to reply could result in the imposition
of sanctions, including dismissal. Id. On July 23,
2019, Plaintiff filed a Response to the Order to Show Cause
explaining that he had been in contact with representatives
for Defendants, and that he mailed certified summonses. Doc.
No. 14. On July 30, 2019, the Court issued an order
dismissing the case without prejudice for failure to
prosecute because “Plaintiff admits [he] failed to
properly serve Defendants . . . despite being given specific
instructions on how to [do] so.” Doc. No. 15. The Court
also noted that Plaintiff did not set forth any plans for
service or provide a sufficient explanation as to why service
had not yet occurred. Id.
August 13, 2019, Plaintiff filed a Notice of Appeal and a
Motion for Permission to Appeal In Forma Pauperis and
Affidavit (the “Motion”). Doc. Nos. 16 and 17. When a
movant seeks leave to proceed in forma pauperis his
appeal is subject to a frivolity determination.
Figueroa-Negron v. Calero, No. 17-13149-G, 2019 U.S.
App. LEXIS 15058, at *4 (11th Cir. May 21, 2019) (citing 28
U.S.C. § 1915(e)). An action is frivolous “if it
is without arguable merit either in law or fact.”
Figueroa-Negron, 2019 U.S. App. LEXIS 15058, at *4
(quoting Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002)).
seeks review of the Court's order dismissing this case
without prejudice for Plaintiff's failure to prosecute
due to Plaintiff's failure to attempt proper service on
Defendants. Doc. No. 16. Plaintiff was advised by the Court
that his service via first class mail on Defendants did not
satisfy Rule 4. Doc. No. 9 at 2. Plaintiff was also directed
to respond to an order to show cause why this case should not
be dismissed for failure to comply with Rule 4(m). Doc. No.
12. Rather than ask for more time to perfect service or
attempt to serve in an acceptable manner, Plaintiff has
maintained that his service via regular mail is sufficient
for all Defendants. Doc. Nos. 8, 14, 16.
Court “has the inherent ability to dismiss a claim in
light of its authority to enforce its orders and provide for
the efficient disposition of litigation.” Zocaras
v. Castro, 465 F.3d 479, 483 (11th Cir. 2006);
see Fed. R. Civ. P. 41(b). A district court's
dismissal of an action for failure to comply with the rules
of court is reviewed for an abuse of discretion.
Zocaras, 465 F.3d at 483. Typically, “a
dismissal without prejudice . . . is not an abuse of
discretion” particularly “where a litigant has
been forewarned about the possibility of dismissal.”
Adeniji v. Bondi, No. 18-13860-A, 2019 U.S. App.
LEXIS 17695, at *6 (11th Cir. June 12, 2019) (citing
Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495,
1499 (11th Cir. 1983) and Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989)). Where Plaintiff failed to take
any action to correct his service problems, the Court was
within its discretion to dismiss the action without
prejudice. Figueroa-Negron, 2019 U.S. App. LEXIS
15058, at *5 (finding district court did not abuse its
discretion in dismissing a complaint with prejudice where
plaintiff failed to comply with orders which required
plaintiff to file an appropriate summons, and included
warnings the complaint could be dismissed); Adeniji,
2019 U.S. App. LEXIS 17695, at *6 (plaintiff repeatedly
forewarned failure to amend complaint would result in
dismissal and dismissal without prejudice was not an abuse of
discretion). An appeal of the Court's order dismissing
without prejudice would be frivolous.
on the forgoing, it is RECOMMENDED that the
Motion (Doc. No. 17) be DENIED.
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. Failure to file written objections waives
that party's right to challenge on appeal any
unobjected-to factual finding or legal conclusion ...