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Cady v. Moore

United States District Court, N.D. Florida, Panama City Division

June 10, 2019

TYRON LEROY CADY, Plaintiff,
v.
MOORE, et al., Defendants.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge

         The clerk of the court referred this case to the undersigned upon Plaintiff's failure to respond to the order to show cause issued by this court on May 7, 2019. (Doc. 6). For the following reasons, the undersigned recommends that the present action be DISMISSED without prejudice for failure to pay the filing fee and failure to comply with two court orders.[1]

         I. Background

         On January 7, 2019, Plaintiff, previously an inmate at the Holmes County Jail, filed this action pursuant to 42 U.S.C. § 1983. Plaintiff named six defendants. (Doc. 1 at 2-3). Plaintiff sought to assert the following claims: (1) violations of the Health Insurance Portability and Accountability Act of 1996; (2) violations of the Due Process Clause of the Fourteenth Amendment; (3) Privacy Act violations; (4) false imprisonment; (5) civil rights violations, including deliberate indifference to a serious medical need in violation of the Fourteenth Amendment; (6) negligence; (7) discrimination; and (8) harassment. (id. at 8). For relief, plaintiff sought expungement of his record, compensatory damages, an inspection of the Holmes County Jail, and the closure of the Holmes County Jail. (id.).

         On March 6, 2019, the undersigned ordered the Plaintiff to either file a motion to proceed in forma pauperis or pay the $400 filing fee. (Doc. 3). The undersigned gave Plaintiff thirty days to comply and warned Plaintiff that failure to comply likely would result in dismissal of his action. (id. at 2).

         On March 19, 2019, that order was returned as undeliverable and marked “refused.” (Doc. 4). The clerk of the court re-mailed the order to the address provided by Plaintiff in his complaint. On April 29, 2019, the order was returned a second time as “undeliverable.” (Doc. 5). On May 7, 2019, the undersigned issued an order to show cause that directed Plaintiff to explain why the undersigned should not dismiss this action for Plaintiff's failure to comply with an order of the court and his failure to keep the court apprised of his address. (Doc. 6). On May 16, 2019, that order was returned as undeliverable because the Plaintiff had been released from custody. (Doc. 7). Plaintiff never filed a motion to proceed in forma pauperis, never paid the filing fee, never responded to the undersigned's orders, and failed to keep this court apprised of his current address.

         II. Discussion

         The undersigned recommends that this Court dismiss Plaintiff's complaint for two reasons: (1) Plaintiff failed to pay the filing fee; and (2) he failed to comply with two court orders.

         A. Failure to Pay the Filing Fee or Seek to Proceed in forma pauperis

         The Prisoner Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), was enacted “[i]n an effort to stem the flood of prisoner lawsuits in federal court.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc). In pursuit of that goal, the PLRA amended portions of 28 U.S.C. § 1915 to require the payment of filing fees by prisoners proceeding in the district court. Id. The PLRA “clearly and unambiguously requires” payment of the filing fee, even if that is done in installments. Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001) (quoting 28 U.S.C. § 1915(b)(1)); see Wilson v. Sargent, 313 F.3d 1315, 1318 (11th Cir. 2002) (citing 28 U.S.C. § 1915(3)(b)(1)). Thus, a “party who files . . . a civil case must simultaneously either pay any fee required under 28 U.S.C. § 1914 or move for leave to proceed n forma pauperis.” N.D. Fla. Loc. R. 5.3.

         Local Rule 41.1 for the Northern District of Florida provides that “the Court may strike a pleading, dismiss a claim, enter a default on a claim, take other appropriate action, or issue an order to show cause why any of these actions should not be taken” if a party fails to comply with an applicable rule or court order. N.D. Fla. Loc. R. 41.1 Before a court may dismiss an action for failure to pay the filing fee, the court must first afford the plaintiff an opportunity to explain the failure. See Wilson, 313 F.3d at 1320-21; see also Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir. 2014). If a prisoner-litigant “does not comply with the district court's directions” to pay the filing fee or complete a motion to proceed in forma pauperis nor offers an explanation for his failure to do so, “the district court must presume that the prisoner is not a pauper, assess the entire filing fee, and dismiss the case for want of prosecution.” Bomer v. Lavigne, 76 Fed.Appx. 660, 661 (6th Cir. 2003). Here, the undersigned ordered the Plaintiff to either pay the $400.00 filing fee or file a motion for leave to proceed as a pauper. (Doc. 3). The undersigned warned the Plaintiff that the failure to comply with the court order likely would result in dismissal of this action. The undersigned subsequently issued an order to show cause, giving the Plaintiff thirty days to explain why he failed to pay the filing fee or submit a motion for leave to proceed in forma pauperis. See Wilson, 313 F.3d at 1320-21; see also Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir. 2014). In that order, the undersigned again warned the Plaintiff that his failure to pay the filing fee, seek leave to proceed in forma pauperis, or explain his failure to comply with the court's previous order likely would result in dismissal of this action. (Doc. 6). Despite these warnings and an opportunity to explain his failure to comply, Plaintiff has neither explained his failure to pay the filing fee. For this reason, the undersigned recommends that this case be dismissed without prejudice.

         B. Failure to Comply with Court Orders

         As a separate independent reason to dismiss this case, the Plaintiff has failed to comply with two court orders.

         “A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case.” Degen v. United States, 517 U.S. 820, 827, 116 S.Ct. 1777, 1782 (1996); see e.g., N.D. Fla. Loc. R. 41.1. “Federal courts possess an inherent power to dismiss a complaint for failure to comply with a court order.” Foudy v. Indian River Cty. Sheriff's Office, 845 F.3d 1117, 1126 (11th Cir. 2017); Equity Lifestyle Properties, Inc. v. Florida Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (“The court may dismiss a claim if the plaintiff fails to prosecute it or comply with a court order.”); see Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962) (noting the inherent power of courts to dismiss an action is not precluded by Fed.R.Civ.P. 41(b)). Courts do not need to wait for a motion to dismiss. Rather, they may sua sponte dismiss cases for failure to comply with court orders and for failure to prosecute an action. Costello v. United States, 365 U.S. 265, 286-87, 81 S.Ct. 534, 545 (1961) (noting that a district court may sua ...


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