Opinion
Civil Action 2:23-cv-1397
12-14-2023
ANTHONY HUNTER, Plaintiff, v. FAYETTE COUNTY COMMISSIONER, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Court dismiss the Complaint (ECF No. 1) filed by Plaintiff Anthony Hunter without prejudice and deny as moot his Motion for Leave to Proceed in forma pauperis (ECF No. 4) for failing to comply with the Court's August 17, 2023 and September 26, 2023 Deficiency Orders. (ECF Nos. 3 and 5.)
II. REPORT
A. Procedural History and Discussion
Pro se Plaintiff Anthony Hunter (“Hunter”) initiated this action on August 4, 2023. (ECF No. 1.) The Complaint was not docketed because he did not submit the $402.00 filing fee or move for leave to proceed in forma pauperis (“IFP”).
On August 17, 2023, this Court issued a deficiency order which administratively closed the case and instructed Hunter on the necessary requirements to proceed with the lawsuit. (ECF No. 3.) This included filing an IFP motion along with the required supporting documents identified in the deficiency order and submitting an amended complaint that complied with the Federal Rules of Civil Procedure and the instructions provided in the deficiency order. (Id.)
Hunter filed an IFP motion on September 7, 2023. (ECF No. 4.) However, he did not include with the IFP motion all the required supporting documents nor did he submit an amended complaint. Thus, the Court issued a second deficiency order on September 26, 2023 instructing Hunter that if wished to proceed with this lawsuit, he must either submit the $402.00 filing fee or submit all of the required documents identified in the second deficiency order. (ECF No. 5.) This order also instructed Hunter that no later than October 26, 2023, he must submit an amended complaint that complied with the instructions in the August 17, 2023 deficiency order, and that his failure to do so would be construed as indicating his decision not to continue with the prosecution of this case. (Id.)
As reflected on the docket, Hunter did not submit an amended complaint by October 26, 2023. Moreover, he has not sought more time to do so or otherwise communicated with the Court. The Court construes his failure to comply with the deficiency orders as his decision not to continue with the prosecution of this case. Therefore, this action should be dismissed without prejudice and his Motion for Leave to Proceed in forma pauperis (ECF No. 4) be denied as moot.
B. Conclusion
Based on the above, it is respectfully recommended that this action be dismissed without prejudice and that Plaintiff's Motion for Leave to Proceed in forma pauperis be denied as moot.
C. Notice
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days from the date of service to file written objections to this report and recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).