BALL v. KILGORE et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRAVIS LEROY BALL, 	:
:
Plaintiff, 	: 	Civil Action
: 	No. 5:24-CV-262-CAR-ALS
v. 	:
:
SHERIFF DAN KILGORE, 	:
CAPTAIN RALPH SEARCY, and 	:
LIEUTENANT HEATH EPPINGER 	:
:
Defendants. 	:
____________________________________
ORDER ON RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the United States Magistrate Judge’s Recommendation to grant
Defendants’ Motion to Dismiss and dismiss pro se Plaintiff Travis Ball’s Complaint
without prejudice under Fed. R. Civ. P. 41(b) for his failure to diligently prosecute this
action, namely his failure to provide change of address.1 After the Recommendation was
entered, Plaintiff filed a Notice of Change of Address and a “Motion for Default
Judgment.”2 The Court CONSTRUES Plaintiff’s “Motion for Default Judgment” as an
Objection to the Recommendation [Doc. 22]. Having considered the construed Objection
1 [Doc. 19.]
2 [Doc. 21]; [Doc. 22.]
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and conducted a de novo review, the Court REJECTS the Recommendation [Doc. 19].
Thus, the Court DENIES Defendants’ Motion to Dismiss [Doc. 17].
BACKGROUND
On March 12, 2025, Defendants filed their Motion to Dismiss this action with
prejudice 	for 	failure 	to 	prosecute 	under Fed. 	R. 	Civ. 	P. 	41(b).3 Defense 	counsel
represented Plaintiff was released from the custody of the Georgia Department of
Corrections on February 5, 2025, and had failed to timely notify the Court of his change
of address.4 The next day, the Magistrate Judge notified Plaintiff that Defendants had
moved to dismiss this action based on Plaintiff’s failure to advise the Court of his changed
address and ordered him to respond to Defendant’s motion within 21 days of the Order’s
date.5 Because Plaintiff neither responded to the motion nor notified the Court of his
changed address, the Magistrate Judge found a clear record of delay or willful contempt
on Plaintiff’s part and on May 5, 2025, recommended dismissal without prejudice finding
lesser sanctions would not suffice.6
Nine days later, on May 14, 2025, Plaintiff signed and mailed his Notice of Change
of Address which was later filed on May 19, 2025.7 Plaintiff listed as his updated address
3 [Doc. 17.]
4 Id.
5 [Doc. 18 at 1-2.]
6 [Doc. 19 at 2.]
7 [Doc. 21]; [Doc 21-1.]
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a federal correctional institution in Alabama.8 On June 5, 2025, Plaintiff filed a “Motion
for Default Judgment” in which he objected to the Magistrate Judge’s Recommendation
of dismissal.9
DISCUSSION
Plaintiff alleges Defendants violated his Eighth Amendment rights on March 20,
2023.10 “Federal courts apply their forum state's statute of limitations for personal injury
actions to actions brought pursuant to 42 U.S.C. § 1983.”11 “Georgia's statute of limitations
is two years.”12 Thus, the applicable statute of limitations for Plaintiff’s Section 1983
claims in this action expired on March 20, 2025. Dismissing this action without prejudice
would preclude Plaintiff from refiling his claims due to the running of the two-year
statute of limitations, and thus, dismissal without prejudice here would be tantamount
to a dismissal with prejudice.13
“Because the penalty is so drastic, a district court may dismiss a case with
prejudice only where ‘there is a clear record of delay or willful contempt and a finding
8 Id.
9 [Doc. 22.]
10 [Doc. 6], Ball v. Kilgore, 5:24-cv-262; [Doc. 7], Ball v. Kilgore, 5:24-cv-262.
11 Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003).
12 Id.
13 Jackson v. Fla. Dep't of Corr., 491 F. App'x 129, 132 (11th Cir. 2012) (citing Justice v. United States, 6 F.3d
1474, 1482 n.15 (11th Cir. 1993)). It is unlikely Plaintiff could take advantage of Georgia’s renewal statute,
O.C.G.A. § 9-2-61, to re-file his claims because to do so, he would first need to pay the outstanding fees for
this action in which he is proceeding IFP. See Hancock v. Cape, 875 F.3d 1079, 1085 (11th Cir. 2017); contra
Muhammad v. Massage Envy of Georgia, Inc., 322 Ga. App. 380, 745 S.E.2d 650 (2013).
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that lesser sanctions would not suffice.’”14 Indeed, “[m]ere delay will not suffice; ‘[a]
finding of such extreme circumstances necessary to support the sanction of dismissal
must, at a minimum, be based on evidence of willful delay; simple negligence does not
warrant 	dismissal.’”15 Accordingly, 	“delay 	alone, 	in 	the 	absence 	of 	bad 	faith, 	is
insufficient to justify a dismissal with prejudice.”16
Here, the record lacks the extreme circumstances necessary to support dismissal
with prejudice. It appears Plaintiff’s delayed notice of change of address resulted from
mere negligence, not a clear record of delay or willful misconduct. Plaintiff acted to notify
the Court of his change of address to a different correctional institution on May 14, 2025
– just nine days after the Magistrate Judge entered the Recommendation.17 As a result of
this three-month delay in notifying the Court, Plaintiff did not receive Defendants’
Motion to Dismiss, the Magistrate Judge’s Order notifying him of the Motion and
directing him to respond, or the Recommendation until after May 19, 2025. Plaintiff’s
three-month delay in notifying the Court of his changed address may result from
logistical challenges that pro se prison litigants commonly face when they are moved
between different correctional institutions. Because the record lacks clear evidence of a
clear pattern of delay or willful contempt, the Court REJECTS the Magistrate Judge’s
14 Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993).
15 Id.
16 Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1259 (11th Cir. 2001).
17 [Doc. 21]; [Doc. 19.]
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Recommendation to dismiss this action for failure to prosecute under Fed. R. Civ. P. 41(b)
without prejudice which would effectively be with prejudice because of the statute of
limitations. Thus, the Court DENIES Defendants’ Motion to Dismiss [Doc. 17].
CONCLUSION
This Court has made a de novo determination of the Recommendation to which
Plaintiff objects. Having considered the construed Objection [Doc. 22] and conducted a
de novo review, the Court REJECTS the Recommendation [Doc. 19]. Thus, the
Court DENIES Defendants’ Motion to Dismiss [Doc. 17].
SO ORDERED, this 10th day of December, 2025.
s/ C. Ashley Royal ________________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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