Opinion
3:21cv535/LAC/EMT
07-08-2021
DANIEL BARBARINO, Plaintiff, v. M.V. JOSEPH, Defendant.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
This matter is before the court upon referral from the clerk. Plaintiff, proceeding pro se, commenced this case by filing a complaint against M.V. Joseph, Warden of the Federal Prison Camp in Pensacola, Florida (ECF No. 1). Plaintiff complained that Warden Joseph was subjecting him to cruel and unusual punishment by failing to provide necessary dental care (id.). Plaintiff filed his complaint on a habeas corpus petition form (id.). He did not pay the filing fee or file a motion to proceed in forma pauperis (IFP) with his complaint.
On April 5, 2021, the undersigned entered an order notifying Plaintiff that his complaint was in the nature of a civil rights action, not habeas corpus (see ECF No. 3). The court directed the clerk of court to send Plaintiff a civil rights complaint form and the forms needed for seeking leave to proceed IFP (id. at 3). The court directed Plaintiff to file an amended complaint on the form provided by the clerk and to either pay the filing fee or file an IFP motion (id.). The court set a thirty-day deadline for Plaintiff to comply with the court's directives, and the court notified Plaintiff has his failure to comply would result in a recommendation of dismissal of this case (id. at 3).
On April 12, 2021, Plaintiff filed a Notice to the Court, which the court construed as a motion for reconsideration of the court's order of April 5 (see ECF No. 4). The undersigned denied the motion for reconsideration on April 13, 2021 (ECF No. 5). Plaintiff then filed a Notice of Appeal (ECF No. 6), which was referred to the District Judge. The District Judge construed Plaintiff's arguments in his Notice as an objection to the undersigned's order of April 5, and the Judge denied the objection (see ECF No. 7). The District Judge also directed the clerk of court to process Plaintiff's Notice of Appeal (id.).
The clerk of court forwarded Plaintiff's Notice of Appeal to the Eleventh Circuit Court of Appeals, which assigned Case Number 21-11343 (see ECF Nos. 9, 10). According to Public Access to Court Electronic Records (PACER), the Eleventh Circuit dismissed the appeal for lack of jurisdiction on May 24, 2021.
Following dismissal of the appeal, Plaintiff still did not comply with the court's order of April 5, 2021 (directing him to file an amended civil rights complaint and either pay the filing fee or file an IFP motion). Therefore, on June 1, 2021, the undersigned entered an order directing Plaintiff to show cause, within thirty days, why this case should not be dismissed for his failure to comply with an order of the court (ECF No. 13). The court notified Plaintiff that his failure to comply with the show cause order would result in a recommendation of dismissal of this case (id.).
The time for compliance with the show cause order has now elapsed, and Plaintiff has not filed an amended complaint, paid the filing fee, filed an IFP motion, or shown cause for his failure to comply with the court's order.
On June 2, 2021, the court received from Plaintiff a motion for restraining order under Rule 65 of the Federal Rules of Civil Procedure, seeking medical and dental treatment or release from custody, evidently in order to obtain such treatment by outside providers (see ECF No. 14). The filing does not comply with the court's directive to file an amended civil rights complaint on the court form. Additionally, Plaintiff still has not filed an IFP motion or paid the filing fee.
Accordingly, it is respectfully RECOMMENDED that this case be DISMISSED without prejudice for Plaintiff's failure to comply with an order of the court.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen 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. Rule 3-1; 28 U.S.C. § 636.