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Foreman v. Watkins

United States District Court, Southern District of Alabama
Aug 8, 2022
CA 21-0320-CG-MU (S.D. Ala. Aug. 8, 2022)

Opinion

CA 21-0320-CG-MU

08-08-2022

MACK AUTHER FOREMAN, JR., Plaintiff, v. PAUL WATKINS, M.D., Defendant.


REPORT AND RECOMMENDATION

P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

This pro se prisoner action has been referred to the undersigned, in accordance with 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR 72(a)(2)(R), for appropriate action. For the reasons stated, it is recommended that the Court dismiss this action based upon Mack Auther Foreman, Jr.'s failure to prosecute this action and failure to comply with the Court's Orders dated and entered April 14, 2022 (Doc. 24) and June 16, 2022 (Doc. 26). The Court ADVISES Plaintiff that the dismissal of this action will be a WITH PREJUDICE dismissal because this action is indisputably time-barred.

On or about July 12, 2021, Mack Auther Foreman, Jr. filed a civil rights complaint, under 42 U.S.C. § 1983, against Dr. Paul Watkins (a free world physician) arising out of Defendant Watkins' purported medical malpractice and/or negligence while performing surgery on Plaintiff's left ankle on or about July 25, 2018. (See Doc. 1, PageID. 1-7). Concurrent with the filing of the complaint, Foreman filed a motion to proceed without prepayment of fees (Doc. 2); however, because the IFP motion was not on this Court's form and was otherwise non-compliant with this Court's requirements, this Court ordered Foreman to file a IFP motion on this Court's form that complied with the Court's requirements not later than August 13, 2021 (Doc. 3, PageID. 54 (“Plaintiff is ORDERED by August 13, 2021, to complete and file this Court's form for a motion to proceed without prepayment of fees and to attach a copy of the institutional record of his inmate account reflecting transactions in his account for the six-month period immediately preceding the filing of his complaint.”)). After Foreman filed his first motion to proceed without prepayment on this Court's form (see Doc. 4), there occurred much back and forth between the Court and Foreman due to Plaintiff's failure to file an IFP motion that fully complied with the contents (including instructions) of the Orders sent to him. (See Docs. 7-8, 11-12 & 14-17). Following this Court's February 15, 2022 Order denying Foreman's fifth IFP motion (see Doc. 17), Foreman filed three more IFP motions in quick succession in March of 2022 (see Docs. 18, 19 & 22).

Upon a review of these three IFP motions, the undersigned entered an Order on April 14, 2022, construing them as motions for reconsideration “of the denial of ifp status and the imposition of $402 in fees.” (Doc. 24, PageID. 156). The Court granted the motions for reconsideration, granted Plaintiff's sixth IFP motion, and denied as moot his seventh and eight IFP motions. (Id.). And while the Court granted Plaintiff's sixth motion to proceed without prepayment of fees, it also ordered and required Foreman to remit a money order for $194.14 made payable to the Clerk of the Court within twenty-one (21) days-that is, not later than May 5, 2022-and ordered that the remainder of the $350.00 filing fee be paid by Plaintiff in accordance with 28 U.S.C. § 1915(b)(2). (See id., PageID. 156-58). Foreman was warned that any “[f]ailure to comply with this order within the prescribed time will result in the dismissal of this action. If the money order is not timely received by the Clerk, the Clerk is directed to forward this action's file to the undersigned judge for dismissal for failure to prosecute and to obey the Court's order and for entry of an order requiring the appropriate agency to collect the $350.00 filing fee from Plaintiff's prisoner account in the manner prescribed by 28 U.S.C. § 1915(b)(2).” (Id., PageID. 157). That Order also parenthetically informed Foreman that his previously-filed § 1983 action in which Watkins was a named defendant, Foreman v. Dunn, et al., CA No. 19-0204-CG-MU, was dismissed prior to service of process pursuant to 28 U.S.C. § 1915 and that this dismissal was affirmed by the Eleventh Circuit and, further, that “a § 1983 action must be filed within two years of when he has reason to know that he has been injured by a person.” (See id., PageID. 157, n.1).

Instead of paying the partial filing fee, as ordered, Foreman filed a pleading titled “Confidential” and alleged therein that because “Warden Cargle of Staton Prison stated [] she paid the Court, [ when] this Court stated that the filing fee has not been paid[,]” he was asking the Court to “order Warden Cargle to certify under oath that she has paid the $405 filing fee to the Court.” (Doc. 26, PageID. 168; compare Id. with Doc. 25 (Foreman's “Confidential” pleading/motion)). By Order dated and entered June 16, 2022, this Court denied Foreman's “Confidential” motion (Doc. 26, PageID. 168-69). As well, the Court addressed Foreman's failure to pay the partial filing fee. (See id., PageID. 169-70).

Instead of paying the partial filing fee, Foreman filed the present Motion with Warden Cargle's affidavit and answer attached, which were her responses to Foreman's claim filed with the Alabama Board of Adjustment; an inmate request slip; and a copy of the check for $1,815.75, identified as coming from an income tax refund account. (Doc. 25 at 4-7, PageID. 163-65). The Motion and its attachments do not explain why Foreman has not paid the partial filing fee. Nor does the undersigned see the relevance of the Motion and its attachments to this action. As pled, the
disbursements made from Foreman's prisoner account concern the persons making the disbursements from the account and the Alabama Department of Corrections, not this Court. This Court merely receives what is sent to it.
To summarize, the $350.00 filing fee in Foreman's first action, Foremen v. Dunn, et al., Civil Action No. 19-0204-CG-MU . . ., is the only filing fee that the Court has received from Foreman. No other money has been received by this Court from Foreman.
Because Foreman filed a Motion, instead of paying the $194.14 partial filing fee, Foreman is GRANTED an extension of time to pay the partial filing fee by July 6, 2022. The failure to comply with this order within the required [time] will result in the dismissal of this action for failure to comply with the Court's order and to prosecute this action.
(Id.) (emphasis in original).

An action may be dismissed if a plaintiff fails to prosecute it or if he fails to comply with any court order. Fed.R.Civ.P. 41(b); see also Link v. Wabash Railroad Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute); Frith v. Curry, 812 Fed.Appx. 933, 935 (11th Cir. May 4, 2020) (affirming a without prejudice dismissal for failure to comply with order directing payment of the initial partial filing fee); Brown v. Tallahassee Police Dep't, 205 Fed.Appx. 802, 802-03 (11th Cir. Nov. 15, 2006) (affirming a without dismissal prejudice of a pro se action for failure to follow a court order); Zocaras 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), cert. denied, 549 U.S. 1228, 127 S.Ct. 1300, 167 L.Ed.2d 113 (2007); World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995) (“‘A district court has authority under Federal Rule[] of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.'”).

Foreman has not remitted to this Court the partial filing fee of $194.14 or otherwise filed a proper response to the Court's Orders dated and entered April 14, 2022 and June 16, 2022 (compare Docket Sheet with Docs. 24 & 26). Therefore, it is recommended that Foreman's present action be DISMISSED, pursuant to Fed.R.Civ.P. 41(b), due to his failure to prosecute this action by complying with this Court's lawful orders dated and entered on April 14, 2022 and June 16, 2022. This dismissal will be a WITH PREJUDICE dismissal because this action is indisputably time-barred.

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)(1) & (2). 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.


Summaries of

Foreman v. Watkins

United States District Court, Southern District of Alabama
Aug 8, 2022
CA 21-0320-CG-MU (S.D. Ala. Aug. 8, 2022)
Case details for

Foreman v. Watkins

Case Details

Full title:MACK AUTHER FOREMAN, JR., Plaintiff, v. PAUL WATKINS, M.D., Defendant.

Court:United States District Court, Southern District of Alabama

Date published: Aug 8, 2022

Citations

CA 21-0320-CG-MU (S.D. Ala. Aug. 8, 2022)