Opinion
Civil Action 00-0657-RV-M
September 14, 2000.
REPORT AND RECOMMENDATION
Plaintiff, while incarcerated at the Mobile County Metro Jail, filed a complaint for a declaratory judgment on July 18, 2000, and sought seeking leave to proceed in forma pauperis. This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice for failure to comply with Court's order and to prosecute this action.
Upon review of the complaint and the records of this Court, it was determined that Plaintiff was in violation of the provisions of 28 U.S.C. § 1915(g)(1996) and should therefore not be allowed to proceed on his complaint without prepayment of the $150.00 filing fee (Doc. 4). Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [ 28 U.S.C. § 1915] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The records of this Court reflect that Plaintiff had filed three actions that were dismissed because they were frivolous. Furthermore, the present complaint's allegations (Doc. 1) do not indicate that Plaintiff is "under imminent danger of serious physical injury" from Defendants as the complaint concerns events that led to the revocation of Plaintiff's supervised release and the search and the seizure of his personal property. In light of the foregoing, the Court entered an order on August 2, 2000, requiring that Plaintiff pay the $150.00 filing fee by August 30, 2000 (Doc. 4). Plaintiff was warned that his failure to pay the filing fee within the prescribed time would result in the dismissal of his action for failure to comply with the Court's order and to prosecute this action (Doc. 4). Plaintiff has not responded to the Court's order, nor is there any indication that Plaintiff did not receive a copy of the Court's order.
Plaintiff's actions that were previously dismissed as frivolous are: Bonner v. Mobile County Sheriff's Department. et al., Civil Action No. 94-0055-RV-S (S.D. Ala. Apr. 11, 1995); Bonner v. Griffin, et al., Civil Action No. 94-0455-P-C (S.D. Ala. Oct. 27, 1994); and Bonner v. Tillman, et al., Civil Action No. 96-0299-P-M (S.D. Ala. Jan. 13, 1997).
Plaintiff also filed another action with the Court, Bonner v. Leddick, et al., 00-0552-BH-S, wherein he was found to be in violation of 28 U.S.C. § 1915(g) and was ordered to pay the $150.00 filing fee. Due to Plaintiff's failure to pay the filing fee, it has been recommended that the action be dismissed.
To date, Plaintiff has failed to comply with the Court's order by paying the filing fee. The undersigned, therefore, concludes that this action should be dismissed. Accordingly, it is recommended that this action be dismissed without prejudice for failure to comply with the Court's order and to prosecute this action as no other lesser sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (interpreting Rule 41(b) not to restrict the court's inherent authority to dismiss sua sponte an action for lack of prosecution); World Thrust Films, Inc. v. International Family Entertainment. Inc., 41 F.3d 1454, 1456-57 (11th Cir. 1995); Mingo v. Sugar Cane Growers Co-op, 864 F.2d 101, 102 (11th Cir. 1989); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1983); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983). Accord Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (ruling that federal courts' inherent power to manage their own proceedings authorized the imposition of attorney's fees and related expenses as a sanction);Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545-46 (11th Cir.) (finding that the court's inherent power to manage actions before it permitted the imposition of fines), cert. denied, 510 U.S. 863, 114 S.Ct. 181, 126 L.Ed.2d 140 (1993).
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v.Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.