Opinion
5:21-cv-205-TKW/MJF
01-19-2022
STEVEN MICHAEL AITKEN, Plaintiff, v. STATE OF FLORIDA, et al., Defendants.
REPORT AND RECOMMENDATION
Michael J. Frank, United States Magistrate Judge.
Because Plaintiff has failed to prosecute this action, has failed to pay the filing fee, and has failed to comply with two court orders, the undersigned respectfully recommends that the District Court dismiss this action without prejudice.
The District Court referred this case to the undersigned to address preliminary matters and to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed R. Civ. P. 72(b).
I. Background
On October 20, 2021, Plaintiff, a prisoner proceeding pro se, initiated this action without simultaneously paying the $402.00 filing fee or filing a motion for leave to proceed in forma pauperis. Doc. 1. Although they are difficult to decipher, the allegations in Plaintiff's complaint appear to assert claims under section 1983.
On October 21, 2021, because Plaintiff did not file the complaint on the forms approved for use by the Local Rules of the United States District Court for the Northern District of Florida, the undersigned ordered Plaintiff to file an amended complaint. Doc. 3. In that same order, the undersigned also ordered Plaintiff to pay the $402.00 filing fee or file a fully-completed motion for leave to proceed in forma pauperis. Id. at 4. The undersigned imposed a deadline of November 22, 2021 to comply. The undersigned warned Plaintiff that his failure to comply with the order likely would result in dismissal of this action for failure to comply with an order of the court, failure to prosecute, failure to pay the filing fee, and failure to comply with the Local Rules. Id. Plaintiff did not comply with that order.
On December 6, 2021, the undersigned ordered Plaintiff to explain and show cause why he failed to comply with the undersigned's order of October 21, 2021. Doc. 8. The undersigned imposed a deadline of January 5, 2022 to comply. The undersigned again warned Plaintiff that his failure to comply with the order likely would result in dismissal of this action for failure to comply with an order of the court, failure to prosecute, failure to pay the filing fee, and failure to comply with the Local Rules. Id. As of the date of this report and recommendation, Plaintiff has not complied with the undersigned's order.
II. Discussion
“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 (1996); see, e.g., N.D. Fla. Loc. R. 41.1 (authorizing the court to dismiss a claim when 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 Cnty. Sheriff's Off., 845 F.3d 1117, 1126 (11th Cir. 2017); Equity Lifestyle Props., Inc. v. Fla. 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 (1962) (noting a court's inherent power to dismiss an action is not precluded by Fed.R.Civ.P. 41(b)). A court also may dismiss an action for failure to pay the filing fee. Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir. 2014); Wilson v. Sargent, 313 F.3d 1315, 1320-21 (11th Cir. 2002). Courts need not wait for a motion to dismiss. Rather, they may sua sponte dismiss cases for failure to comply with court orders, for failure to prosecute an action, and for failure to pay the filing fee. Costello v. United States, 365 U.S. 265, 286-87 (1961) (noting that a district court may sua sponte dismiss a complaint for a plaintiff's failure to comply with a court order); Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (noting that the Supreme Court has “long held that courts may dismiss actions on their own motion in a broad range of circumstances”).
On October 21, 2021, the undersigned ordered Plaintiff to file an amended complaint, and to pay the $402.00 filing fee or file a fully-completed motion for leave to proceed in forma pauperis. Doc. 3. Despite having over two months to comply with the undersigned's order, Plaintiff has not paid the filing fee or prosecuted this action in any respect. He also has not complied with the undersigned's show-cause order. Doc. 8.
III. Conclusion
Because Plaintiff has failed to prosecute this action, has failed to pay the filing fee, and has failed to comply with two court orders, the undersigned respectfully RECOMMENDS that the District Court:
1. DISMISS this case without prejudice.
2. Order the clerk of the court to close this case. At Pensacola, Florida, this 19th day of January, 2022.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.