United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
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.
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
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).
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.
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.
Failure to Pay the Filing Fee or Seek to Proceed in forma
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.
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
Failure to Comply with Court Orders
separate independent reason to dismiss this case, the
Plaintiff has failed to comply with two court orders.
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 ...