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Cloy v. Goleman

United States District Court, S.D. Alabama, Southern Division

May 20, 2014

RICKIE LEE CLOY, Plaintiff,
v.
TRACY GOLEMAN, Defendant.

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

Pursuant to the Order entered on March 5, 2014 (doc. 3), plaintiff was required to pay a partial filing fee of $44.75 by March 26, 2014, in order to proceed with this action. Plaintiff was reminded of this obligation in the Court's Order dated April 9, 2014 (doc. 5). Plaintiff has neither paid the requisite filing fee nor requested an extension of time within which to do so. An Order was then entered on April 29, 2014 (doc. 6) giving plaintiff one more opportunity to pay the required partial filing fee. Plaintiff was cautioned that "FAILURE TO TIMELY COMPLY WITH THIS ORDER SHALL RESULT IN A RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR WANT OF PROSECUTION AND FAILURE TO COMPLY WITH THE ORDERS OF THIS COURT." (Doc. 6, emphasis in original). Plaintiff has again failed to comply with the Court's Order by paying the required filing fee and has not sought an extension of time within which to do so.

Due to Plaintiff's failure to comply with the Court's order and to prosecute this action by paying the required filing fee, the undersigned recommends that, through its inherent powers, this action be dismissed without prejudice. Link v. Wabash R.R. , 370 U.S. 626, 630-31 (1962) ("The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."); Zocarus v. Castro , 465 F.3d 479, 483 (11th Cir. 2006) (recognizing a district court's inherent power to enforce orders and provide for the efficient disposition of litigation); Wilson v. Sargent , 313 F.3d 1315, 1331-32 & n. 7 (11th Cir. 2002) (holding that a prisoner's failure to pay the partial filing fee under § 1915 is a basis for dismissal); see generally Betty K. Agencies, Ltd. v. M/V Monada , 432 F.3d 1333, 1337-38 (11th Cir. 2005) (discussing dismissals pursuant to the court's inherent power and dismissals based on Rule 14(b) of the Federal Rules of Civil Procedure, and concluding that only a dismissal with prejudice requires findings of contumacious conduct and that lesser sanctions will not suffice).

In the present action, if plaintiff disputes the finding of failure to pay the partial filing fee and wants to proceed with litigation of his action, he shall set forth in an objection to the report and recommendation the reason for his failure comply with the Court's order and to pay the filing fee. Wilson, 414 F.3d at 1320 ( citing to Hatchet v. Nettles , 201 F.3d 651, 654 (5th Cir. 2000) (finding that an objection to a recommendation is an acceptable means to ascertain the steps taken by a prisoner to comply with the order to pay a partial filing fee).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served in the manner provided by law on all parties who have appeared. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.


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