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Murphy v. Andrews

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

September 24, 2019

WILLIE MURPHY, JR., Plaintiff,
v.
TRACY ANDREWS, 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 respond to this court's order directing Plaintiff to explain his failure to pay the filing fee. (Doc. 12). For the reasons set forth below, the undersigned recommends that this civil action be dismissed without prejudice for failure to pay the filing fee and failure to comply with two court orders.[1]

         I. Background

         On April 4, 2019, Plaintiff, a non-prisoner who is proceeding pro se, commenced this action in the United States District Court for the Middle District of Florida. Plaintiff alleged that Defendant “arbitrarily and illegally” deprived him of his “Birth-Right due to Gross Negligence and Fraud.” (Doc. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. 2). On April 26, 2019, this case was transferred to the Northern District of Florida. (Doc. 6).

         The undersigned denied Plaintiff's motion for leave to proceed in forma pauperis without prejudice because Plaintiff's financial affidavit did not provide sufficient detail regarding his financial status. (Doc. 8). The undersigned directed Plaintiff either to file an amended motion for leave to proceed in forma pauperis or to pay the fee of $400.00 ($350.00 filing fee and $50.00 administrative fee). (Id.). On June 17, 2019, Plaintiff filed an amended motion for leave to proceed in forma pauperis. In that motion, Plaintiff indicated that each month his mother provides him with approximately $1, 520.00, [2] and his monthly expenses totaled about $1, 390.00. (Doc. 9).

         The undersigned denied Plaintiff's motion for leave to proceed in forma pauperis and directed Plaintiff to pay the filing fee on or before August 9, 2019. (Doc. 11). After the time to comply had elapsed, the undersigned issued an order directing Plaintiff to explain why he failed to comply with the undersigned's order. The undersigned provided Plaintiff until September 11, 2019, to respond and warned Plaintiff that his failure to respond likely would result in dismissal. (Doc. 12). As of today, Plaintiff has failed to comply with these orders.

         II Discussion

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

         A. Failure to Pay Filing Fee

         Rule 5.3 of the Local Rules for Northern District of Florida provides in relevant part: “A party who files or removes 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. Section 1914 authorizes the clerk of each district court to collect a filing fee from the party instituting any civil action, suit, or proceeding in the district court. 28 U.S.C. § 1915.

         A court may dismiss an action for failure to pay the filing fee so long as the court first affords the plaintiff an opportunity to explain the failure. See Wilson, 313 F.3d 1315, 1320-21 (11th Cir. 2002)[3]; see also Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir. 2014). Additionally, 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.

         Here, Plaintiff's motion for leave to proceed in forma pauperis was denied. The undersigned directed the Plaintiff to pay the filing fee in accordance with the local rules for the Northern District of Florida and specifically warned Plaintiff that his failure to pay the filing fee would likely result in dismissal. Plaintiff failed to pay the filing fee. Despite the undersigned issuing an order to show cause, Plaintiff did not explain why he failed to pay the filing fee or seek an extension of time to comply with the undersigned's order. The undersigned, therefore, recommends that this action be dismissed for failure to pay the filing fee.

         B. Failure to Comply ...


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