Opinion
No. 3:20-cv-1257-E-BN
08-27-2020
ANTHONY WAYNE HAWKINS, Plaintiff, v. MARK CHRISTIAN and GERADO ROZALES, Defendants.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Anthony Wayne Hawkins, now a former federal prisoner, brought this pro se civil rights action against two former prison administrators at FCI Seagoville, a federal prison in this district, alleging that his Eighth Amendment right against cruel and unusual punishment was violated by his exposure to asbestos and mold while incarcerated at Seagoville. See Dkt. No. 2.
His case has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ada Brown.
Hawkins has moved for leave to proceed in forma pauperis ("IFP"), providing inmate account information that the Court would consider under the Prison Litigation Reform Act ("PLRA"). See Dkt. No. 4. But, simultaneous to filing his complaint, Hawkins also filed a notice informing the Court that he has been released from prison, and he has provided a free-world mailing address. See Dkt. No. 5.
The Court therefore entered the following order on May 18, 2020:
An inmate's "subsequent release does not relieve him of the requirement[s imposed by the PLRA,]" Bargher v. White, 928 F.3d 439, 447 (5th Cir. 2019) (citation omitted), including that he "be ordered to pay the full filing fee in installments," Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000) (per curiam) (citing 28 U.S.C. § 1915(b)(2) and McGore v. Wrigglesworth, 114 F.3d 601, 606-07 (6th Cir. 1997); further noting that "'[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee'" (quoting 28 U.S.C. § 1915(b)(4); citing Walp v. Scott, 115 F.3d 308, 310 (5th Cir. 1997))).
"By its plain language, however, the PLRA's restrictions do not apply to actions filed by former inmates following their release." Bargher, 928 F.3d at 447-48 (citations omitted).
Because Hawkins's IFP motion as filed is premised on the PLRA, the Court cannot determine whether he, as a former inmate when he initiated this action, qualifies to proceed in forma pauperis. For example, through his motion as filed, he relates that he received relatively substantial financial support from friends and family during the last 12 months he was incarcerated - more than $3,300. See Dkt. No. 4 at 1.
Accordingly, consistent with the standards set out in this order, Hawkins must, by June 18, 2020, either file an amended motion for leave to proceed IFP - using the form Motion to Proceed In Forma Pauperis - Non-Prisoner, available on the Court's website, at http://www.txnd.uscourts.gov/pro-se/forms - or pay the $400 filing fee. Failure to do either by that date will result in a recommendation that his complaint be dismissed for failure to prosecute and obey orders of the Court under Federal Rule of Civil Procedure 41(b).
The standards governing IFP motions are set forth in 28 U.S.C. § 1915(a). The district court may authorize the commencement of a civil action without the prepayment of fees or costs "by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The Court must then examine the financial condition of the applicant in order to determine whether the payment of fees would "cause undue financial hardship." Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). "This entails a review of other demands on individual plaintiffs' financial resources, including whether the expenses are discretionary or mandatory." Id.
And, while "[t]he term 'undue financial hardship' is not defined and, therefore, is a flexible concept[,] ... a pragmatic rule of thumb contemplates that undue financial hardship results when prepayment of fees or costs would result in the applicant's inability to pay for the
'necessities of life.'" Walker v. Univ. of Tex. Med. Branch, No. 1:08-CV-417, 2008 WL 4873733, at *1 (E.D. Tex. Oct. 30, 2008) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also Williams v. Louisiana, Civ. A. No. 14-00154-BAJ-EWD, 2017 WL 3124332, at *1 (M.D. La. Apr. 14, 2017) (noting that the applicable standard "requires a showing of more than an inconvenience to the applicant" (citations omitted)).Dkt. No. 6 (emphasis omitted).
"[W]hether the litigant is 'unable to pay' the costs [associated with initiating a lawsuit also] ... depend[s] in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend." Williams v. Spencer, 455 F. Supp. 205, 209 (D. Md. 1978); see Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) ("In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse, parent, adult sibling or other next friend." (citations and internal quotation marks omitted)); accord Pisano v. Astrue, No. 11-30269-KPN, 2012 WL 79188, at *2 (D. Mass. Jan. 10, 2012) (collecting cases).
And a financial affidavit that is either "incomplete" or "internally inconsistent" is insufficient to find that a movant qualifies for leave to proceed IFP. Muhammad v. La. Attorney Disciplinary Bd., Civ. A. No. 09-3431, 2009 WL 3150041, at *2 (E.D. La. Sept. 25, 2009) (citing Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976) ("[W]here the in forma pauperis affidavit is sufficient on its face to demonstrate economic eligibility, the court should first docket the case and then proceed to the question ... of whether the asserted claim is frivolous or malicious."); collecting cases).
Now, more than two months past the deadline to file an amended IFP motion, Hawkins has failed to obey the Court's order or otherwise contact the Court.
Federal Rule of Civil Procedure 41(b) "authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a court order." Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App'x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute).
This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) ("Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to 'achieve the orderly and expeditious disposition of cases.'" (quoting Link, 370 U.S. at 631)).
The Court's authority under Rule 41(b) is not diluted by a party proceeding pro se, as "[t]he right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law." Wright v. LBA Hospitality, 754 F. App'x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981))).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
Although "[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is 'a clear record of delay or contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice.'"Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that "lesser sanctions" may "'include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings'" (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
"When a dismissal is without prejudice but 'the applicable statute of limitations probably bars future litigation,'" that dismissal operates as - i.e., it is reviewed as - "a dismissal with prejudice." Griggs, 905 F.3d at 844 (quoting Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App'x at 300 (affirming dismissal under Rule 41(b) - potentially effectively with prejudice - where "[t]he district court had warned Wright of the consequences and 'allowed [her] a second chance at obtaining service'" but she "disregarded that clear and reasonable order").
By not filing an amended IFP motion by June 18, 2020, as ordered - in addition to leaving the impression that he no longer wishes to pursue his claims - Hawkins has prevented this action from proceeding and has thus failed to prosecute his lawsuit. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. The undersigned concludes that lesser sanctions would be futile, as the Court is not required to delay the disposition of this case until such time as Hawkins decides to obey the Court's order or contact the Court. The Court should therefore exercise its inherent power to prevent undue delays in the disposition of pending cases and sua sponte dismiss this action without prejudice.
Recommendation
The Court should dismiss this action without prejudice under Federal Rules of Civil Procedure 41(b).
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). 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 findings, conclusions, 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. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: August 27, 2020
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE