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Lidell v. Jones

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

July 5, 2019

WILLIAM LEE LIDELL, Plaintiff,
v.
JULIE L. JONES and PAYNE, 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 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.[1]

         I. Background

         On 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.

         On 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).

         Plaintiff 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.

         As of 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.

         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 in 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 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).

         Here, 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.

         B. Failure to Comply ...


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