United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN
RUSS WALKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff,
a state inmate, filed this 42 U.S.C. § 1983 action
challenging the adequacy of medical treatment provided to him
at the Bullock Correctional Facility. Plaintiff sought
issuance of a preliminary injunction with respect to the
claims presented in this action. However, Plaintiff did not
file the $350 filing fee and $50 administrative fee
applicable when a plaintiff is not proceeding in forma
pauperis, nor did he submit an original affidavit in
support of a motion for leave to proceed in forma
pauperis accompanied by the required documentation from
the inmate account clerk at Bullock regarding the average
monthly deposits and average monthly balance in his inmate
account for the six month period prior to filing this case.
Thus, the pleadings filed by Plaintiff failed to provide the
court with the information necessary for a determination of
whether he should be allowed to proceed without prepayment of
fees in this cause of action.
Based
on the foregoing, the court entered an order requiring
Plaintiff to “file either the appropriate affidavit in
support of a motion for leave to proceed in forma
pauperis accompanied by a prison account statement from
the account clerk at Bullock showing the average monthly
balance in plaintiff's prison account for the 6-month
period immediately preceding the filing of this complaint and
the average monthly deposits to plaintiff's account
during the past six months or, if
he does not seek in forma pauperis treatment, the
$400 filing/administrative fees. The plaintiff is advised
that it is his responsibility to
obtain his inmate account information from the account clerk
at Bullock.” Doc. 4 at 1-2 (emphasis in original). The
order also specifically cautioned Plaintiff “that if he
fails to comply with this order the Magistrate Judge will
recommend that this case be dismissed.” Doc. 4 at 2.
The time for Plaintiff to file a response to this order
expired on January 10, 2019.
As of
the present date, Plaintiff has failed to file the required
financial information. Absent either pre-payment of the
requisite fees or the granting of in forma pauperis
status, this case cannot proceed before this court. The
undersigned therefore concludes that this case is due to be
dismissed without prejudice. See Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989) (holding that, generally,
where a litigant has been forewarned, dismissal for failure
to obey a court order is not an abuse of discretion). The
authority of courts to impose sanctions for failure to
prosecute or obey an order is longstanding and acknowledged
by Rule 41(b) of the Federal Rules of Civil Procedure.
See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30
(1962). This authority empowers the courts “to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link, 370
U.S. at 630-31; Mingo v. Sugar Cane Growers Co-Op of
Fla., 864 F.2d 101, 102 (11th Cir. 1989) (holding that
“[t]he district court possesses the inherent power to
police its docket.”). “The sanctions imposed
[upon dilatory litigants] can range from a simple reprimand
to an order dismissing the action with or without
prejudice.” Mingo, 864 F.2d at 102.
In
addition, under the circumstances of this case, the court
finds that Plaintiff's motion for preliminary injunction
should be denied, as the court previously determined that
failed to meet the requirements for the issuance of
preliminary injunctive relief. See Doc. 3 at
2-3.[1]
Accordingly,
it is the RECOMMENDATION of the Magistrate Judge that:
1. The
motion for preliminary injunction be DENIED.
2. This
case be DISMISSED without prejudice for Plaintiff's
failure to file necessary financial information as ordered by
this court.
On or
before April 16, 2019, Plaintiff may file
objections to the Recommendation. Any objections filed must
specifically identify the findings in the Magistrate
Judge's Recommendation to which he objects. Frivolous,
conclusive or general objections will not be considered by
the District Court. Plaintiff is advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.
Failure
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall “waive the right to challenge
on appeal the district court's order based on
unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of
justice. 11TH Cir. R. 3-1; see Resolution Trust Co. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.
1993); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989).
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Notes:
[1]This court may grant a preliminary
injunction only if Plaintiff demonstrates each of the
following prerequisites: (1) a substantial likelihood of
success on the merits; (2) a substantial threat irreparable
injury will occur absent issuance of the injunction; (3) the
threatened injury outweighs the potential damage the
requested injunctive relief may cause the non-moving parties;
and (4) the injunction would not be adverse to the public
interest. Palmer v. Braun, 287 F.3d 1325, 1329 (11th
Cir. 2002); McDonald's Corp. v. Robertson, 147
F.3d 1301, 1306 (1998). These prerequisites as the same as
those ...