Opinion
Civil Action 00-0909-RV-M.
December 6, 2000
REPORT AND RECOMMENDATION
This § 1983 action was filed on October 10, 2000, by an Alabama prison inmate seeking leave to proceed in forma pauperis. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). After careful consideration on the matters contained in this action, it is the undersigned's recommendation that this action be dismissed without prejudice for failure to comply with Court's order and to prosecute this action.
Upon review of the present complaint and the records of this Court, Plaintiff was determined to be in violation of the provisions of 28 U.S.C. § 1915 (g) (1996), and should therefore not be allowed to proceed on his complaint without prepayment of the requisite filing fee (Doc. 3). 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 this Court reflected that Plaintiff had previously filed six actions in this Court that were dismissed on ground that the action was frivolous. Furthermore, the present complaint's allegations (Doc. 1) did not indicate that Plaintiff was "under imminent danger of serious physical injury" from Defendants. The Court found that Plaintiff's complaint was unintelligible, but it was also able to glean from Plaintiff's allegations that he is having classification problems and that he is being blocked from participation in the work release program. In light of the foregoing, the Court entered an order on October 25, 2000, requiring Plaintiff to pay the $150.00 filing fee by November 27, 2000 (Doc. 3) Plaintiff was warned that his failure to pay 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 (Doc. 3).
Montgomery v. Bodiford, Civil Action No. 87-0957-P-M (S.D. Ala. May 9, 1988); Montgomery v. Johnson, Civil Action No. 87-0969-C-M (S.D. Ala. Jan. 6, 1988); Montgomery v. Fuqua, Civil Action No. 88-0226-AH-C (S.D. Ala. Nov. 10, 1988); Montgomery v. Hicks, Civil Action No. 88-0133-AH-M (S.D. Ala. Aug. 29, 1988); Montgomery v. Austin, Civil Action No. 92-1084-BH-S (S.D. Ala. July 11, 1994); and Montgomery v. Chaucy, Civil Action No. 95-0214-BK-S (S.D. Ala. July 24, 1996).
Plaintiff has not paid the $150.00 filing fee. Instead, Plaintiff filed a handwritten document titled "Leave to proceed in forma pauperis: under 28 U.S.C. § 1915" (Doc. 4). Plaintiff's filing is unresponsive to issues that concern the applicability of § 1915(g) That is, Plaintiff appears to discuss the payment for a trial transcript when someone is proceeding in forma pauperis.
Upon consideration of Plaintiff's filing (Doc. 4), the failure to pay the $150.00 filing fee, and the matters contained in this action, the undersigned concludes that this action should be dismissed. Accordingly, it is recommended 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).