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Mitchell v. Browne

United States District Court, N.D. Florida, Pensacola Division

September 13, 2019

MARCUS D. MITCHELL, Plaintiff,
v.
TAYLOR BROWNE, Defendant.

          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 pay the initial partial filing fee assessed in January 2019. (Doc. 14). For the reasons set forth below, the undersigned recommends that the present action be dismissed without prejudice for failure to pay the filing fee and failure to comply with four court orders.[1]

         I. Background

         Plaintiff, proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his Sixth Amendment right to counsel. (Doc. 1 at 7). Plaintiff names one Defendant, Mrs. Taylor Browne. (Id. at 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. 2). On January 10, 2019, Chief United States Magistrate Judge Elizabeth M. Timothy granted Plaintiff's motion for leave to proceed in forma pauperis and assessed an initial partial filing fee of $26.93. (Doc. 6). Judge Timothy imposed a thirty-day deadline for Plaintiff to comply and warned Plaintiff that his “failure to submit the partial filing fee as instructed may result in a recommendation of dismissal of this action.” (Doc. 6 at 3).

         On March 12, 2019, approximately one month after the deadline imposed by Judge Timothy had passed, the undersigned issued an order directing Plaintiff to explain his failure to comply with Judge Timothy's order. (Doc. 8). Plaintiff responded that he had been granted in forma pauperis status and was unable to pay the filing fee. (Doc. 9).

         On April 15, 2019, the undersigned issued an order noting that Plaintiff had not provided evidence that he was unable to pay the initial partial filing fee. (Doc. 10). The undersigned also advised Plaintiff “that proceeding in forma pauperis [did] not relieve him of his duty to pay the $350.00 filing fee . . . Instead, proceeding in forma pauperis allows a Plaintiff to proceed with a case without pre-payment of the entire filing fee.” (Id. at 2). The undersigned directed Plaintiff either to pay the initial partial filing fee or support his assertion that he was unable to pay the initial partial filing fee with updated inmate account statements. (Doc. 10 at 2). The undersigned imposed a thirty-day deadline to comply. (Id.). The undersigned warned Plaintiff that his failure to comply likely would result in dismissal of this action. (Id. at 3).

         On May 30, 2019, after the court-imposed deadline had passed, the undersigned issued an order directing Plaintiff to explain why he failed to comply with the undersigned's order. (Doc. 12). In that order, the undersigned warned Plaintiff that “[t]his court will afford Plaintiff one more opportunity to pay the initial partial filing fee of $26.93 or submit updated account statements supporting his assertion that he is unable to pay the initial partial filing fee.” (Id. at 2). On July 3, 2019, Plaintiff filed a response that asserted two reasons that he failed to comply with the undersigned's orders. (Doc. 13). First, he claimed that he could not comply with the undersigned's order to provide an updated inmate trust account because he was not confined at Cross City East Unit from October 15, 2018 to the present. (Id.) Second, Plaintiff claimed that he could not comply with the undersigned's orders to pay the initial partial filing fee because he did not have the “correct party” to which to address a check or money order. (Id.)

         On July 5, 2019, the undersigned issued an order explaining to Plaintiff that neither of the reasons he provided excused his failure to comply with the court orders. (Doc. 14). Nonetheless, the undersigned imposed a new deadline of August 5, 2019, for payment of the initial partial filing fee. The undersigned again warned Plaintiff that his “failure to comply with this order likely will result in dismissal of this action for failure to pay the initial partial filing fee and failure to comply with a court order.” (Id.) As of the date of this report and recommendation, Plaintiff still has not paid the filing fee or responded to the undersigned's order.

         II. Discussion

         The undersigned recommends that this court dismiss Plaintiff's complaint in light of Plaintiff's failure to: (1) pay the initial partial filing fee; and (2) comply with four court orders.

         A. Failure to Pay the Initial Partial 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 a 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, on January 10, 2019, Judge Timothy ordered Plaintiff to pay an initial partial filing fee of $26.93. (Doc. 6). Judge Timothy warned Plaintiff that the “failure to submit the partial filing fee as instructed may result in a recommendation of dismissal of this action.” (Doc. 6 at 3). Since Judge Timothy's initial order, Plaintiff has been ordered to pay the initial filing fee and/or show cause why Plaintiff failed to pay the initial filing fee on four separate occasions. (Docs. 8, 10, 12, 14). Each time, Plaintiff was warned that the failure to pay the initial partial filing fee likely would result in dismissal of this action. (Id.) ...


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