United States District Court, N.D. Florida, Tallahassee Division
E-YAGE BOWENS, D.O.C. #M93599, Plaintiff,
JULIE JONES, Defendant.
ORDER AND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
proceeding pro se, has submitted another “demand for
judicial clarification.” ECF No. 10. Plaintiff seeks
to have the Court answer 28 numbered questions, most of which
are multiple questions. Id. Plaintiff included,
however, an “opt out” provision by which the
Court need not respond to the questions if Respondent is
ordered to show cause why Plaintiff's request for
injunctive relief should not be granted. Id. at 4.
Plaintiff's demand, again construed as a motion for
clarification, is similarly denied. Plaintiff is not seeking
clarification about anything relevant to this case. The
motion is frivolous.
when Plaintiff initiated this case, he submitted a
handwritten document, ECF No. 1, which was less than clear.
The Clerk's Office opened this case as a civil rights
action for Plaintiff, but Plaintiff was required to clarify
whether he intended for this action to proceed as such or as
a habeas petition. ECF No. 3. Plaintiff was also advised that
the Local Rules of this Court require pro se litigants to
file a civil rights complaint or petition for writ of habeas
corpus on an approved form which is provided without charge.
N.D. Fla. Loc. R. 5.7(A). The Order explained to Plaintiff
that “[a] case is a civil rights case if it asserts a
claim under the United States Constitution of a statute
creating individual rights, including, for example, 42 U.S.C.
§ 1983 or the Civil Rights Act of 1964.”
Id. Additionally, a case is a habeas petition if the
relief requested is release from prison. Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973). Having been
provided that clarification, Plaintiff was provided with a
civil rights complaint form and a petition for requesting
issuance of a writ of habeas corpus. Id. He was
advised to file whichever form was the most applicable for
the kind of case he intended to litigate. Id.
Plaintiff was also warned that the Court ordinarily would not
“consider a petition, motion, or complaint that is not
filed on the proper form.” Id. Plaintiff was
required to file the complaint or petition by March 6, 2019.
Plaintiff was informed of the requirement to submit the
filing fee for this case and advised of the different fees.
ECF No. 3 at 2. Plaintiff was required to either pay the
appropriate fee or file an in forma pauperis motion by March
6, 2019, if he was entitled to do so. Id. He subsequently
submitted payment of $5.00, ECF No. 6, suggesting that he
wanted to proceed with this case as a habeas petition, rather
than a civil rights case. However, it cannot be determined
that this is such a case until Plaintiff files a habeas
petition on the form which was provided to him.
was given an additional extension of time in which to comply
with the orders directing him to file either a habeas
petition or a civil rights complaint on the required form.
ECF No. 7. His deadline to comply was April 12, 2019.
Id. As of this date, he still has not complied.
has filed a document which he titled “letter rogatory
for relief, ” ECF No. 4, suggesting that this is not a
Court but a “tribunal operated as a private
corporation” which lacked judicial power. Id.
at 1. Plaintiff has made frivolous assertions concerning
criminal proceedings and claiming “court officials
consider themselves as a beneficiary.” Id.
That document does not clarify the type of case Plaintiff
intended to file.
is not the first “three strike” prisoner who has
attempted to proceed with only a $5.00 filing fee to pursue a
civil rights case. If Plaintiff were legitimately seeking
habeas relief, he should have filed a petition as he was
directed to do, twice. ECF Nos. 3, 7. Instead, Plaintiff has
shown that he is seeking to proceed with frivolous claims
based on the Uniform Commercial Code. See ECF No. 1.
Plaintiff has already been directed to consider the numerous
cases which have dismissed habeas petitions brought by
inmates who seek release from prison on the basis of civil
contract or commercial law. See Harris v. Wands, 410
Fed.Appx. 145, 146-47 (10th Cir. 2011) (holding inmate's
challenge to the legality of his confinement based on civil
commercial law to be frivolous); Northrop v.
Quintana, 2015 WL 7345756, at *3-4 (E.D. Ky. 2015)
(same); Jackson v. Massachusetts, No. CV
18-11609-LTS, 2018 WL 5017919, at *2 (D. Mass. Oct. 15, 2018)
(same); Schlager v. Beard, 398 Fed.Appx. 699, 701
(3d Cir. 2010) (finding prisoner's claim “that he
is somehow entitled to release from prison because he is a
‘Secured Party Sovereign' is ‘the epitome of
frivolous.'”) (cited in Myers v. Fla., No.
5:12-CV-259-RS- EMT, 2014 WL 68067, at *8 (N.D. Fla. Jan. 8,
2014)). Based on the initial complaint filed, this case lacks
merit. Moreover, because Plaintiff has not complied with
court orders to file a proper complaint or petition, this
case should be dismissed.
had been warned that a recommendation would be made to
dismiss this case if he did not comply with the prior Orders.
ECF Nos. 3, 7. Despite those warnings, Plaintiff has not
complied and it appears that Plaintiff has abandoned this
litigation. Further extensions of time would not be
Supreme Court has held that “[t]he authority of a court
to dismiss sua sponte for lack of prosecution has generally
been considered an ‘inherent power,' governed not
by rule or statute but by the control necessarily vested in
courts to manage their own affairs.” Link v. Wabash
R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389, 8
L.Ed.2d 734 (1962) (quoted in Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005));
see also N.D. Fla. Loc. R. 41.1. A “court may
dismiss a claim if the plaintiff fails to prosecute it or
comply with a court order.” Equity Lifestyle
Properties, Inc. v. Fla. Mowing And Landscape Serv.,
Inc., 556 F.3d 1232, 1240 (11th Cir. 2009). Because
Plaintiff has failed to prosecute this case, dismissal is now
it is ORDERED that Plaintiff's second
motion for judicial clarification, ECF No. 10, is
respectfully RECOMMENDED that this case be
DISMISSED for failure to prosecute and
failure to comply with a Court Order.