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 6, 2019. (Doc. 8). 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.
February 12, 2019, Plaintiff, an inmate of the Florida
Department of Corrections (“FDOC”), filed this
action pursuant to 42 U.S.C. § 1983. Plaintiff named two
defendants. (Doc. 1 at 1-2). Plaintiff alleges that the
defendants violated the Eighth and Fourteenth Amendments to
the United States Constitution when they failed to evacuate
Plaintiff during a hurricane. For relief, Plaintiff seeks
$808.00 so that he can replace his trial transcripts that
purportedly were damaged by the hurricane.
March 14, 2019, the undersigned denied Plaintiff motion for
leave to proceed in forma pauperis in light of its
deficiencies. The Undersigned ordered the Plaintiff to either
file a complete motion to proceed in forma pauperis
or pay the $400 filing fee. (Doc. 7). The undersigned gave
Plaintiff thirty days to comply and warned Plaintiff that
failure to comply likely would result in dismissal of this
action. (id. at 3).
did not pay the filing fee and did not submit a proper motion
to proceed in forma pauperis. On May 6, 2019, the
undersigned issued a Show Cause Order directing the Plaintiff
to explain why this case should not be dismissed for: (1)
failure to comply with an order of the court; (2) failure to
pay the filing fee or file a motion to proceed in forma
pauperis; and (3) failure to prosecute. (Doc. 8). The
undersigned imposed a thirty-day deadline to comply and again
warned the Plaintiff that his failure to comply likely would
result in dismissal of this action.
today, Plaintiff still has not paid the filing fee, submitted
a complete motion to proceed in forma pauperis, or
responded to the undersigned's orders.
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 in 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 But
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).
the undersigned ordered the Plaintiff to either pay the
filing fee or file a motion for leave to proceed as a pauper.
(Doc. 7). 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. (Doc.
8); 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. 8). Despite these warnings
and an opportunity to explain his failure to comply,
Plaintiff has neither explained his failure nor paid the
filing fee. For this reason, the undersigned recommends that
this case be dismissed without prejudice.
Failure to Comply ...