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Adams v. Schouest

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

November 14, 2019

ERIC ADAMS, Plaintiff,
v.
MICHELLE SCHOUEST, et al, 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 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 two court orders.[1]

         I. Background

         On August 26, 2019, Plaintiff, a prisoner proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. 2). On August 27, 2019, the undersigned denied Plaintiff's motion for leave to proceed in forma pauperis. (Doc. 4). The undersigned ordered Plaintiff to pay the filing fee or submit a fully-completed motion to proceed in forma pauperis on or before September 27, 2019. (Id.). Additionally, the undersigned notified Plaintiff that he failed to file his complaint on the form approved for use in the Norther District of Florida and ordered Plaintiff to file an amended complaint on the appropriate form. (Id.); see N.D. Fla. Loc. R. 5.7(A). The undersigned warned Plaintiff that his failure to comply with a court order likely would result in dismissal. (Id.).

         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. (Doc. 5). The undersigned provided Plaintiff until November 4, 2019, to respond. (Id.). The undersigned again warned Plaintiff that his failure to respond likely would result in dismissal. (Id.). As of the date of this report and recommendation, Plaintiff has failed to comply with these two 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 the 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 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.

         Here, Plaintiff's motion for leave to proceed in forma pauperis was denied because Plaintiff failed to use the in forma pauperis form approved for use in the Northern District of Florida and failed to attach a Prisoner Consent Form and Financial Certificate signed by a prison official. (Doc. 4). Thus, the undersigned directed the Plaintiff to pay the filing fee or file a fully completed motion to proceed in forma pauperis in accordance with the Local Rules of the Northern District of Florida. The undersigned specifically warned Plaintiff that his failure to pay the filing fee or file a fully completed motion to proceed in forma pauperis likely would result in dismissal. After Plaintiff failed to pay the filing fee and file a completed motion to proceed in forma pauperis, the undersigned issued an order to show cause and provided Plaintiff an opportunity to explain his failure.

         As of the date of this report and recommendation, Plaintiff has not: (1) paid the filing fee or filed a completed motion to proceed in forma pauperis; or (2) offered an explanation for these failures. Therefore, the undersigned recommends that this action be dismissed for failure to pay the filing fee.

         B. Failure to Comply with Two Court Orders

         Plaintiff's failure to comply with two court orders is yet another reason to dismiss this case.

         “A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case.” Degen v. United States, 517 U.S. 820, 827, 116 S.Ct. 1777, 1782 (1996); see e.g., N.D. Fla. Loc. R. 41.1 (authorizing “the Court [to] 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). “Federal courts possess an inherent power to dismiss a complaint for failure to comply with a court order.” Foudy v. Indian River Cty. Sheriff's Office, 845 F.3d 1117, 1126 (11th Cir. 2017); Equity Lifestyle Properties, Inc. v. Florida Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (“The court may dismiss a claim if the plaintiff fails to prosecute it or comply with a court order.”); see Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962) (noting the inherent power of courts to dismiss an action is not precluded by Fed.R.Civ.P. 41(b)). Courts do not need to wait for a motion to dismiss. Rather, they may sua sponte dismiss cases for failure to comply with court orders and for failure to prosecute an action. Costello v. United States, 365 U.S. 265, 286-87, 81 ...


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