Lopez-Ortega v. Johns
2:16-cv-00154
S.D. Ga.Apr 21, 2017Background
- Petitioner Lope A. Lopez‑Ortega, incarcerated at D. Ray James CI, filed a 28 U.S.C. § 2241 habeas petition on November 29, 2016.
- Respondent moved to dismiss on March 9, 2017; the Court ordered Lopez‑Ortega on March 21, 2017 to file any objections within 14 days and warned that failure to respond would be deemed non‑opposition.
- Lopez‑Ortega did not respond to the Motion to Dismiss and made no filings after February 17, 2017.
- The magistrate judge recommended dismissal without prejudice for failure to prosecute and failure to follow court orders, and directed the Clerk to close the case.
- The magistrate judge also recommended denial of leave to appeal in forma pauperis, concluding any appeal would not be taken in good faith.
- The R&R provided the plaintiff notice and 14 days to file specific written objections; district judge review would be de novo on timely objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal is warranted for failure to prosecute and follow court orders | Lopez‑Ortega did not present any opposition or explanation for inaction | Respondent argued dismissal is appropriate given no response to motion and noncompliance with Court order | Court recommended dismissal without prejudice for failure to prosecute and failure to follow orders |
| Whether dismissal should be with prejudice (as a sanction) | No active argument presented to avoid extreme sanction | Respondent sought dismissal; court evaluated sanction severity | Court declined harsher sanction; dismissal was without prejudice (lesser sanction appropriate) |
| Whether magistrate’s R&R provided fair notice and opportunity to respond before dismissal | Lopez‑Ortega did not object to R&R | Respondent relied on prior notice and R&R as fair procedure | R&R deemed to provide fair notice; plaintiff retains 14 days to object |
| Whether in forma pauperis status on appeal should be allowed | No motion filed; no merit shown for appeal | Respondent urged denial because no non‑frivolous issue exists | Court recommended denial of IFP status for appeal (appeal not taken in good faith) |
Key Cases Cited
- Link v. Wabash R.R. Co., 370 U.S. 626 (trial courts may dismiss for failure to prosecute)
- Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem. Ass'n (Lux.), 62 F.3d 1356 (11th Cir. 1995) (dismissal with prejudice requires clear record of delay and that lesser sanctions are insufficient)
- Neitzke v. Williams, 490 U.S. 319 (1989) (defines frivolousness standard for pleadings)
- Coppedge v. United States, 369 U.S. 438 (1962) (good‑faith standard for IFP appeals)
- Napier v. Preslicka, 314 F.3d 528 (11th Cir. 2002) (IFP action frivolous if without arguable merit in law or fact)
- Tazoe v. Airbus S.A.S., 631 F.3d 1321 (11th Cir. 2011) (R&R provides fair notice and opportunity to respond before sua sponte dismissal)