United States District Court, S.D. Alabama, Southern Divison
REPORT AND RECOMMENDATION
SONJA
F. BIVINS UNITED STATES MAGISTRATE JUDGE
This
action is before the Court on review. On March 7, 2019,
Plaintiff, Torreco Hoskin, an Alabama prison inmate
proceeding pro se, filed a complaint seeking relief
under 42 U.S.C. § 1983. (Doc. 1). This action has been
referred to the undersigned for appropriate action pursuant
to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR
72(a)(2)(R).
In an
order dated June 7, 2019, the Court directed Hoskin to file
an amended complaint by July 8, 2019, that set forth his full
and complete litigation history. (Doc. 3). The Court also
observed that, at the time that Hoskin filed his complaint,
he did not pay the statutory filing fee of $350.00,
[1] nor
did he file a motion to proceed without the prepayment of
fees. (Id.). Accordingly, Hoskin was ordered to pay
the filing fee by July 8, 2019, or, in lieu thereof, to file
a motion to proceed without prepayment of fees by July 8,
2019. (Doc. 3). He was cautioned that failure to timely
comply with the Court's directives would result in a
recommendation that this action be dismissed without
prejudice.
To
date, Hoskin has filed no response to the Court's order,
nor has he paid the filing fee or filed a motion to proceed
without prepayment of fees. Moreover, his copy of the
Court's order has not been returned to the Court, nor is
there any indication that the Court's order was not
delivered to him.
“A
district court has inherent authority to manage its own
docket ‘so as to achieve the orderly and expeditious
disposition of cases.'” Equity Lifestyle
Properties, Inc. v. Florida Mowing & Landscaping Serv.,
Inc., 556 F.3d 1232, 1240 (11th Cir. 2009)(quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct.
2123, 2132, 115 L.Ed.2d 27 (1991)). While “[p]ro
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed[, ]” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998), this does
not extend to a pro se litigant's failure to
comply with federal procedural rules, local court rules, or
orders of the court. See, e.g., Brown
v. Tallahassee Police Dep't, 205 Fed.Appx. 802,
802-03 (11th Cir. 2006) (affirming sua sponte
dismissal of pro se action for failure to prosecute
or failure to obey a court order.). Federal Rule of Civil
Procedure 41(b) expressly authorizes the involuntary
dismissal of a claim due to a plaintiff's failure to
abide by court orders or the Federal Rules of Civil
Procedure. See, e.g., State Exchange
Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)
(“The Federal Rules expressly authorize a district
court to dismiss a claim, including a counterclaim, or entire
action for failure to prosecute or obey a court order or
federal rule.”). Moreover, the power of a court to
dismiss a claim “is inherent in a trial court's
authority to enforce its orders and ensure prompt disposition
of legal actions.” Id.
Due to
Hoskin's failure to prosecute this action and failure to
comply with the Court's Order to pay the filing fee or
file a motion for leave to file without prepayment of fees,
and upon consideration of the alternatives that are available
to this Court, it is RECOMMENDED that this action be
DISMISSED without prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure as no other lesser sanction
will suffice.
If
Hoskin disputes the Court's finding of failure to pay the
statutory filing fee or to file a motion to proceed without
prepayment of fees and desires to proceed with the litigation
of his action, he shall set forth in an objection to the
report and recommendation the reasons for his failure to pay
the filing fee and failure to file a motion to proceed
without prepayment of fees. Wilson v. Sargent, 414
F.3d 1315, 1320 (llth Cir. 2002)(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 on all
parties in the manner provided by law. 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. GenLR 72(c). The parties should note that
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the
district court's order based on unobjected-to factual and
legal conclusions if the party was informed of the time
period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if
necessary in the interests of justice.” 11th Cir.
R. 3-1. 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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Notes:
[1] The applicable prisoner filing fee for
non-habeas actions is $350.00. See 28 U.S.C. ยง
1914, Judicial Conference Schedule of Fees ...