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Parrish v. Correctional Officer

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

July 19, 2019

ALFRED DEWAYNE PARRISH, JR, Plaintiff,
v.
CORRECTIONAL OFFICER and STATE TROOPER, 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). The undersigned recommends that this case be dismissed without prejudice for failure to pay the filing fee and failure to comply with two court orders.[1]

         I. Background

         On January 18, 2019, Plaintiff, an inmate then housed at Holmes County Jail, 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 his Eighth Amendment rights by “not getting help but written a ticket after getting run over.” (Doc. 1 at 7).

         On April 4, 2019, the undersigned granted Plaintiff's motion for leave to proceed in forma pauperis and assessed an initial partial filing fee of $2.40. (Doc. 7). The undersigned gave Plaintiff thirty days to pay the initial partial filing fee and warned Plaintiff that failure to pay likely would result dismissal of this action. (Id. at 1, 7). Plaintiff did not pay the filing fee before the court-imposed deadline.

         On May 28, 2019, the undersigned issued an order directing 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; and (3) failure to prosecute. (Doc. 8). The undersigned imposed a thirty-day deadline to comply and again warned Plaintiff that his failure to comply likely would result in dismissal of this action. (Id.). Despite this explicit warning, Plaintiff still has not paid the filing fee.

         II. Discussion

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

         A. Failure to Pay the Filing Fee

         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).

         Here, the undersigned ordered Plaintiff to pay the initial partial filing fee. (Doc. 7). The undersigned warned Plaintiff that failure to comply 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. (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 Plaintiff that his failure to pay the filing fee 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 for failure to pay the filing fee.

         B. Failure to Comply ...


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