United States District Court, N.D. Florida, Tallahassee 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 undersigned's
order to show cause. 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 three court orders.
August 26, 2019, Plaintiff, proceeding pro se,
commenced this action alleging that Motel 6 Staff overcharged
her rent, abused her in four states, and “attempted
murder.” (Doc. 1 at 4-6). Plaintiff also filed a motion
to proceed in forma pauperis. (Doc. 2). In
her motion, Plaintiff indicated that she had approximately
$3, 000.00 in a saving account, she received $960.00 monthly
from social security benefits, and her monthly expenses
totaled only $735.00. (Doc. 2).
August 27, 2019, the undersigned denied Plaintiff's
motion to proceed in forma pauperis because
Plaintiff had failed to establish that she was entitled to so
proceed. (Doc. 4). The undersigned directed Plaintiff to pay
$400.00 (a $350.00 filing fee and a $50.00 administrative
fee) on or before September 27, 2019. (Id.). The
undersigned warned Plaintiff that her failure to comply with
a court order likely would result in dismissal of this case.
(Id.). This order was returned marked “return
to sender, vacant, unable to forward.” (Doc. 5).
the time to comply had elapsed, the undersigned ordered
Plaintiff to explain why she failed to comply with the
undersigned's order. (Doc. 6). The undersigned provided
Plaintiff until October 21, 2019, to respond. (Id.).
The undersigned again warned Plaintiff that her failure to
respond likely would result in dismissal. (Id.).
failed to respond and the undersigned issued a second order
to show cause. (Doc. 7). The undersigned imposed a deadline
of November 12, 2019, and warned Plaintiff for a third time
that her failure to comply likely would result in dismissal.
This order was returned undeliverable. (Doc. 8). As of the
date of this report and recommendation, Plaintiff has failed
to comply with these three orders.
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 three court
Failure to Pay Filing Fee
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.
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 v. Sargent, 313
F.3d 1315, 1320-21 (11th Cir. 2002); 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.
Plaintiff's motion for leave to proceed in forma
pauperis was denied because Plaintiff possessed
sufficient funds to pay the filing fee. Thus, the undersigned
directed the Plaintiff to pay the filing fee in accordance
with the Local Rules of the Northern District of Florida. The
undersigned specifically warned Plaintiff that her failure to
pay the filing fee likely would result in dismissal. After
Plaintiff failed to pay the filing fee, the undersigned
issued two orders to show cause and provided Plaintiff an
opportunity to explain her failure. As of the date of this
report and recommendation, Plaintiff has not paid the filing
fee and has not offered an explanation for this failure.
Therefore, the undersigned recommends that this action be
dismissed for failure to pay the filing fee.
Failure to Comply ...