Opinion
Civil Action 99-0975-P-S
June 22, 2000
REPORT AND RECOMMENDATION
This § 1983 action was filed by an Alabama prison inmate 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 the Court's order and to prosecute this action.
Upon review of the complaint and the records of the United States District Court for the Middle District of Alabama, it was determined that Plaintiff was in violation of the provisions of 28 U.S.C. § 1915(g) (1996) and therefore should not be allowed to proceed on his complaint without prepayment of the requisite filing fee (Doc. 12). 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 the United States District Court for the Middle District of Alabama reflected that three actions filed by Plaintiff while he was a prisoner were dismissed as frivolous. Moreover, the undersigned determined that Plaintiff's present complaint (Doc. 1) did not indicate that Plaintiff was "under imminent danger of serious physical injury" because Plaintiff merely seeks to have money restored to him that was allegedly taken from his bank account by Defendant Commercial National Bank in 1976 or 1977 (Doc. 12). Since filing the complaint, Plaintiff filed other documents which the Court construed to be amendments to the complaint (Docs. 4 9). The undersigned found that these amendments contained many incredulous allegations, such as certain persons with a "black snake" caused Plaintiff to murder an extraordinarily large number of people, and then, Plaintiff raped innumerable women and girls. The undersigned concluded that the amendments' allegations did not indicate that Plaintiff was "under imminent danger of serious physical injury" from Defendant. In light of the foregoing, the Court entered an order on May 10, 2000, requiring Plaintiff to pay the remainder of $150.00 filing fee, $138.00, by June 12, 2000 (Doc. 12). Plaintiff was warned that his failure to pay the remainder of 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, and upon dismissal of the action, $12.00 would be remitted to Plaintiff (Doc. 12).
Plaintiff's actions that were previously dismissed as frivolous are: Johnson v. Jackson, et al., Civil Action No. 94-D-0626-N (M.D. Ala. May 25, 1995); Johnson v. Dubina, et al., Civil Action No. 94-A-0627-N (M.D. Ala. Aug. 18, 1994); and Johnson v. American Boxing Assoc., et al., Civil Action No. 94-D-0111-N (M.D. Ala. May 18, 1994).
Initially, Plaintiff's Motion to Proceed Without Prepayment of Fees was granted (Doc. 5), and the Alabama Department of Corrections was ordered to collect the $150.00 filing fee from Plaintiff's inmate account (Doc. 6). The sum of $12.00 has been collected from Plaintiff's inmate account (Doc. 11). Subsequently, during the screening of the complaint under 28 U.S.C. § 1915(e)(2)(B), it was determined that Plaintiff's complaint was subject to the "three-strikes" provision of 28 U.S.C. § 1915(g) and that Plaintiff should not be allowed to proceed under 28 U.S.C. § 1915. Thus, the Court rescinded its prior order granting Plaintiff's Motion to Proceed Without Prepayment of Fees and denied Plaintiff's motion (Doc. 12). The Court also entered an order rescinding the collection order sent to the Alabama Department of Corrections and directing that money no longer be deducted from Plaintiff's inmate account because his in forma pauperis status had been revoked (Doc. 13).
To date, Plaintiff has not paid the remainder of the filing fee, $138.00. Instead, Plaintiff filed a Motion to Compel (Doc. 14), seeking to compel reinstatement of his complaint and service on Defendants; a Notice of Appeal (Doc. 16), asserting that he is poor and cannot pay the remainder of filing fee and that he has been discriminated against because he is black; and Motion to Reconsider Together With Motion to Appeal to the Eleven (sic) Circuit Court (sic) Atlanta (sic) Georgia (Doc. 17), claiming that the Court is in error for revoking his in forma pauperis status because he is poor, cannot pay the remainder of the filing fee, and has paid $18.00 toward the filing fee.
An examination of the Court's financial records indicates that the Court has only received $12.00 from Plaintiff toward the payment of the filing fee.
Because Plaintiff has not paid the remainder of the filing fee and has not shown that 28 U.S.C. § 1915(g) should not be applied to him, the undersigned recommends 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).