Opinion
Case No. 3:16cv476-LC/CAS
01-04-2017
MARLON MANUEL, Petitioner, v. STATE OF FLORIDA, Respondent.
REPORT AND RECOMMENDATION
In an order filed October 20, 2016, Petitioner Marlon Manuel was directed to file either pay the $5.00 filing fee or, alternatively, file a new motion to proceed in forma pauperis by December 8, 2016. ECF No. 7. Petitioner was specifically warned that a recommendation would be made that this case would be dismissed if Petitioner failed to comply with that order. Id. To date, Petitioner has not complied with the Court's order. Notably, the order was returned as undeliverable and the Court re-mailed it. See ECF No. 9. It was again returned. See ECF No. 10. The Court has no updated address for Petitioner.
A trial court has inherent power to dismiss a case sua sponte for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626 (1962). Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an action for failure to obey a court order. Moon v. Newsome, 863 F.2d 835, 838 and cases cited (11th Cir. 1989). Because Petitioner did not comply with an order, this petition should be dismissed without prejudice.
Petitioner shall have a 14-day period after service of this report and recommendation in which to file objections. This will also afford Petitioner a final opportunity to show good cause for this failure to respond. Petitioner may do so by filing a motion for reconsideration which will be referred to me by the Clerk.
It is therefore, respectfully RECOMMENDED that this case be DISMISSED without prejudice.
IN CHAMBERS at Tallahassee, Florida, on January 4, 2017.
S/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a Report and Recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.