           Case: 16-15954   Date Filed: 04/17/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15954
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-03520-WSD

ERIKA JACOBS,

                                                            Plaintiff-Appellant,

                                  versus

ATLANTA POLICE DEPARTMENT,
Airport,
DEKALB COUNTY POLICE DEPARTMENT,
COBB COUNTY POLICE DEPARTMENT,
ET. ALL,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (April 17, 2017)


Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 16-15954     Date Filed: 04/17/2017   Page: 2 of 11




      Plaintiff Erika Jacobs, proceeding pro se and in forma pauperis, appeals the

sua sponte dismissal of her pro se complaint for failure to comply with the district

court’s order to file an amended complaint. Jacob’s pro se complaint alleged

claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.,

and 42 U.S.C. § 1983. On appeal, Jacobs’s brief, liberally construed, argues that

the district court erred in dismissing her complaint and in denying her post-

judgment motions to extend the time to file an amended complaint and for

reconsideration. After review, we vacate the district court’s dismissal with

prejudice and remand for further proceedings consistent with this opinion.

                                I. BACKGROUND

A.    Complaint Filed October 7, 2016

      Jacobs filed her pro se complaint against (1) the Atlanta Police Department;

(2) the Dekalb County Police Department; (3) the Cobb County Police

Department; and (4) “et. all [sic],” without listing other entities or people. Jacob’s

complaint recounted numerous interactions with mostly unidentified police officers

from various municipalities or agencies between 2013 and 2015 and alleged

negligence, discrimination in violation of Title VI, and violations of her First,

Fourth, and Fourteenth Amendment rights.

      On October 7, 2016, a magistrate judge granted Jacob’s application for leave

to proceed in forma pauperis (“IFP”) and ordered that service of process not issue
                                           2
              Case: 16-15954      Date Filed: 04/17/2017   Page: 3 of 11


until the district court had made a frivolity determination as to Jacob’s complaint.

The magistrate judge cautioned Jacobs that she must advise the district court of her

current address at all times while her action was pending. The magistrate judge

noted that Jacobs was “no stranger to the judicial process” and had filed five other

civil actions in the Northern District of Georgia, two of which had been dismissed

in part for failure to obey a court order.

B.    March 23, 2016 Order Allowing until April 8 to Amend Complaint

      On March 23, 2016, the district court, in conducting its frivolity review

pursuant to 28 U.S.C. § 1915(e)(2)(B), determined that Jacobs’s complaint failed

to comply with Federal Rules of Civil Procedure 8 and 10. The district court stated

that Jacob’s complaint “does not comply with these rules because it contains four

‘paragraphs,’ each of which contains a laundry list of allegations involving

multiple sets of circumstances, individuals, and alleged claims.”

      In its March 23 order, the district court ordered Jacobs to file an amended

complaint by April 8, 2016 that identified the claims she sought to assert against

each defendant and the specific facts that supported each claim. The district court

also warned Jacobs that failure to comply with the court’s order would result in

dismissal pursuant to the Northern District of Georgia’s Local Rule 41.3A(2). See

N.D. Ga. L.R. 41.3A(2) (providing that the court may, with or without notice to the




                                             3
              Case: 16-15954       Date Filed: 04/17/2017    Page: 4 of 11


parties, dismiss a civil case for want of prosecution if a plaintiff, after notice, fails

or refuses to obey a lawful order of the court in the case).

C.    April 13, 2016 Order Dismissing Case

      Jacobs did not file an amended complaint or a motion for an extension of

time on or before April 8. On April 13, 2016, the district court entered an order

sua sponte dismissing her complaint pursuant to Local Rule 41.3(A)(2) for failure

to comply with the court’s March 23, 2016 order. The clerk’s office entered a

judgment dismissing Jacob’s action. Because this dismissal did not say without

prejudice, it is a dismissal with prejudice. See Fed. R. Civ. P. 41(b).

D.    Jacob’s April 13, 2016 Motion to Extend April 8 Deadline

      On April 13 (the same day that her complaint was dismissed), Jacobs filed a

motion for an extension of time to file an amended complaint. On the same day,

Jacobs also filed a notice of a change of address.

      In Jacobs’s extension motion, Jacobs explained that her mailing address

changed on March 23, 2016, she requested that the post office forward all of her

mail, but she had not yet received the district court’s March 23, 2016 order.

Instead, Jacobs first learned of the court’s March 23 order when she called the

clerk’s office on April 7, 2016.



E.    April 14, 2016 Order Denying Motion for an Extension


                                            4
              Case: 16-15954    Date Filed: 04/17/2017    Page: 5 of 11


      On April 14, 2016, the district court denied Jacob’s motion for an extension

of time to file an amended complaint. The district court noted that the time given

to amend her complaint had expired on April 8, and Jacobs had not complied with

the court’s March 23 order.

      In response to Jacob’s claim that she never received the March 23 order, the

district court found that Jacobs was at fault because she failed to inform the court

of her change of address. The district court explained that Jacobs’s failure to

inform the court of her address change, which was grounds for dismissal without

prejudice under Local Rule 41.2(B), “adversely affected the management” of

Jacob’s case and led to her failure to comply with the court’s March 23, 2016

order, as follows:

             Under Local Rule 41.2(B), “failure . . . of a party appearing pro
      se to keep the clerk’s office informed of any change in address and/or
      telephone number which causes a delay or otherwise adversely affects
      the management of the case shall constitute grounds . . . for dismissal
      of the action without prejudice.[”]
             Plaintiff failed to inform the Court of her change of address,
      and dismissal of this action would be warranted for this reason. Her
      failure adversely affected the management of this case, leading to
      Plaintiff’s failure to comply with the Court’s March 23rd Order.

F.    Jacob’s April 27, 2016 Motion for Reconsideration

      On April 27, 2016, Jacobs filed a motion for reconsideration of the April 14

order and elaborated on why she had failed to comply with the March 23 order and

had not filed her amended complaint by April 8. Jacobs explained that she closed


                                          5
              Case: 16-15954    Date Filed: 04/17/2017    Page: 6 of 11


her post office box in Atlanta on March 23, 2016, after checking that there were no

notices from the district court. Jacobs initially gave the post office a temporary

forwarding address, but immediately gave the post office her new mailing address

in North Carolina when she obtained it on March 28, 2016. During the week of

March 28, 2016, Jacobs contacted the clerk’s office by telephone to check on the

status of her case and was given the impression that the district court had not sent

her any information.

      During the week of April 4, 2016, Jacobs called the clerk’s office again and

learned of the district court’s March 23, 2016 order. The clerk informed Jacobs

that her address could not be updated by telephone and that Jacobs would need to

submit a change of address in writing. Jacobs asked about obtaining a copy of the

district court’s March 23 order online and was told that only attorneys had online

access. Jacobs said that on April 8, 2016, she mailed her written notice of change

of address and her motion for extension of time. These, however, were not

actually filed until April 13, as outlined above. Jacobs also reported that on April

21, she received both the district court’s March 23, 2016 order and its April 13,

2016 order. Jacobs’s motion for reconsideration asked for more time to amend her

complaint.



G.    August 26, 2016 Order Denying Motion for Reconsideration


                                          6
              Case: 16-15954     Date Filed: 04/17/2017    Page: 7 of 11


      On August 26, 2016, the district court denied Jacob’s motion for

reconsideration. The district court noted that in her April 27 motion, Jacobs “again

states that she changed her address and did not receive the March 23rd Order,” and

that Jacobs “still has not filed her Amended Complaint.” The district court denied

Jacobs’s motion for reconsideration, pursuant to Local Rule 7.2(E), because it did

not “identify any newly discovered evidence, change in controlling law, or need to

correct a clear error of law or fact.” The district court explained:

      Plaintiff’s Motion for Reconsideration offers the same reasons for her
      failure to comply with the March 23rd Order that the Court rejected in
      its order denying Plaintiff’s Motion for Extension of Time to File an
      Amended Complaint. As the Court noted in denying that motion,
      under Local Rule 41.2(B), “failure . . . of a party appearing pro se to
      keep the clerk’s office informed of any change in address and/or
      telephone number which causes a delay or otherwise adversely affects
      the management of the case shall constitute grounds . . . for dismissal
      of the action without prejudice.” LR 41.2(B), NDGa. Plaintiff failed
      to inform the Court of her change of address, and dismissal of this
      action would be warranted for this additional reason. Her failure
      adversely affected the management of this case, leading to Plaintiff’s
      failure to comply with the Court’s March 23rd Order. The Court also
      notes that Plaintiff has had nearly five months to file her Amended
      Complaint, but has failed to do so.

As of August 26, 2016, Jacobs still had not filed her proposed amended complaint

or attached it to any motion.




                                 II. DISCUSSION


                                           7
              Case: 16-15954     Date Filed: 04/17/2017    Page: 8 of 11


A.    General Principles

      A district court may sua sponte dismiss an action pursuant to Federal Rule of

Civil Procedure 41(b) if the plaintiff fails to comply with court rules or a court

order. See Fed. R. Civ. P 41(b); see also N.D. Ga. L.R. 41.3(A)(2); Betty K

Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). Unless the

district court states otherwise, a dismissal under Rule 41(b) is an adjudication on

the merits, and thus is a dismissal with prejudice. See Fed. R. Civ. P. 41(b). We

review such dismissals for an abuse of discretion. Kilgo v. Ricks, 983 F.2d 189,

192 (11th Cir. 1993).

      Dismissal with prejudice is a sanction of last resort, and proper only if the

district court finds: (1) “a clear record of delay or willful conduct” and (2) “that

lesser sanctions are inadequate to correct such conduct.” Zocaras v. Castro, 465

F.3d 479, 483-84 (11th Cir. 2006) (quoting Betty K Agencies, 432 F.3d at 1339);

Kilgo, 983 F.2d at 192. As to the first prong, mere delay will not suffice, rather, a

finding of the extreme circumstances necessary to support the sanction of dismissal

with prejudice must, at a minimum, be based on evidence of willful delay; simple

negligence does not warrant dismissal. Kilgo, 983 F.2d at 192-93. As to the

second prong, we will occasionally infer from the district court’s decision that it

implicitly found that lesser sanctions would not suffice, but we have “never

suggested that the district court need not make the finding.” Id. at 193. That said,


                                           8
              Case: 16-15954     Date Filed: 04/17/2017    Page: 9 of 11


“dismissal [with prejudice] upon disregard of an order, especially where the

litigant has been forewarned, generally is not an abuse of discretion.” Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

B.    Dismissal of Jacob’s Complaint

      Jacobs was instructed in the October 7, 2015 order granting her IFP status to

keep the district court advised of her address at all times, and it is undisputed that

Jacobs failed to do so in a timely manner. Specifically, Jacob admits that she

changed her mailing address on March 23, 2016, when she closed her post office

box, but she did not file her notice of change of address until 21 days later, on

April 13, 2016. Instead, during that time, Jacobs relied on the post office to

forward any court mail to her new address. Furthermore, as a result of her failure

to promptly advise the district court of her new mailing address (which she admits

she knew by March 28, 2016), she did not receive the district court’s March 23,

2016 order until April 21, 2016 and did not comply with that order and file an

amended complaint on or before April 8, 2016.

      The district court found that Jacobs’s delay “adversely affected the

management” of her case. Notably, Local Rule 41.2B of the Northern District of

Georgia states that a party’s failure to keep the clerk’s office informed of a change

of address that “causes a delay or otherwise adversely affects the management of

the case shall constitute grounds . . . for dismissal of the action without


                                           9
             Case: 16-15954     Date Filed: 04/17/2017    Page: 10 of 11


prejudice . . . .” See N.D. Ga. L.R. 41.2B (emphasis added). Under these

particular circumstances, the district court was within its discretion to dismiss

Jacob’s complaint without prejudice.

      Here, however, the district court did not specify that the dismissal of Jacob’s

complaint was without prejudice, and thus the dismissal was with prejudice. See

Fed. R. Civ. P. 41(b). The problem here is that the district court did not make the

required findings necessary to dismiss with prejudice, which are: (1) willful delay

or conduct; and (2) that lesser sanctions will not suffice.

      As to the first prong, the district court’s April 14 order did not find that

Jacobs’s failure to comply with the district court’s March 23, 2016 order was the

result of willful conduct. Further, Jacobs was unaware of that order. On the other

hand, Jacobs delayed in advising the district court of her mailing address.

Moreover, she was a frequent filer with experience litigating in federal court and

had been instructed in this case that she must keep the district court advised of her

current address at all times. But, the district court did not make a finding as to

whether Jacobs’s conduct was negligence or rose to the higher level of willful

delay or willful conduct

      As to the second prong, the district court also made no explicit or implicit

finding that lesser sanctions would be insufficient to address Jacobs’s conduct.

Instead, the district court merely stated that dismissal was warranted due to Jacob’s


                                          10
               Case: 16-15954        Date Filed: 04/17/2017        Page: 11 of 11


failure to inform the court of her change of address. Without further explanation

from the district court, we cannot infer a finding that no lesser sanctions would

suffice. And, absent findings on both of the above issues, the district court may

not dismiss a complaint with prejudice as a sanction under Rule 41(b). See Betty K

Agencies, 432 F.3d at 1337; Kilgo, 983 F.2d at 192.

       Under the circumstances, we vacate the district court’s dismissal with

prejudice and remand for the district court to consider whether Jacobs’s complaint

should be dismissed without prejudice or for other proceedings consistent with this

opinion. We limit our opinion solely to the district court’s sua sponte dismissal

with prejudice. We express no opinion on the sufficiency of Jacobs’s pleadings or

whether Jacobs can, or should be permitted to, amend her complaint to cure any

pleading deficiencies.1

       VACATED AND REMANDED.




       1
         Jacobs’s request that we assign a different district judge to her case on remand is denied.
The actions by the district judge that Jacobs complains of were judicial rulings, routine trial
administration efforts, and ordinary admonishments that do not show pervasive bias and do not
require his disqualification. See Liteky v. United States, 510 U.S. 540, 554-56, 114 S. Ct. 1147,
1156-58 (1994); Hamm v. Members of the Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983).
                                                 11
