Niebla v. Atkins

Full title: JORGE L. NIEBLA, Plaintiff, v. C. ATKINS, Defendant

Court: United States District Court, N.D. Florida, Panama City Division

Date published: Dec 29, 2008

Case No. 5:08cv314/RH/MD (N.D. Fla. Dec. 29, 2008)

Opinion

Case No. 5:08cv314/RH/MD.

December 29, 2008

ORDER and REPORT AND RECOMMENDATION

MILES DAVIS, Magistrate Judge

This cause is before the court upon referral from the clerk. Plaintiff, an inmate of the Florida penal system proceeding pro se, initiated this action on October 14, 2008 by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). Because the complaint was not accompanied by the filing fee or an application to proceed in forma pauperis, the court entered an order on October 21, 2008 directing plaintiff to either pay the $350.00 filing fee or file a complete application to proceed in forma pauperis, within thirty days. (Doc. 3). Plaintiff was warned that failure to comply with the order would result in a recommendation of dismissal of this action.

In response, plaintiff filed a "Motion to Proceed" in which he argued that he should not be responsible for the filing fee; rather, the defendant should be ordered to pay it. (Doc. 4). The court denied the motion on November 6, 2008. (Doc. 5).

On December 1, 2008, after receiving notice from the clerk that plaintiff had neither paid the filing fee nor submitted an application to proceed in forma pauperis, the court entered an order directing plaintiff to show cause within twenty days why this case should not be dismissed for his failure to comply with the court's October 21, 2008 order. (Doc. 6). In response, plaintiff filed a "Motion for Judgment on the Pleadings," in which he requested a decision on the merits of his case. (Doc. 7). He then filed a "Motion for Assistance and Relief," in which he argued that this court was denying him access to the courts and violating his rights to due process and equal protection by not proceeding with his case. (Doc. 8). Plaintiff further contended that he was "set up" with a false disciplinary report because he wrote to the "regional director" to report "staff misuse of prison funds and property, fraudulent activity, and covering staff violation of the laws." As relief, plaintiff asked that the court "grant assistance and the relief that plaintiff is entitled." ( Id.).

To date, over sixty days has elapsed, and plaintiff has not complied with the court's order directing him to pay the $350.00 filing fee or apply for leave to proceed in forma pauperis. Plaintiff has been given ample time and opportunity to do so. Because his filings indicate that he is unwilling, rather than unable to comply, this case should be dismissed.

Accordingly, it is ORDERED:

Plaintiff's Motion for Assistance and Relief (doc. 8) is DENIED.

And it is respectfully RECOMMENDED:

1. That this cause be DISMISSED WITHOUT PREJUDICE for plaintiff's failure to comply with an order of the court.

2. That all pending motions, including plaintiff's Motion for Judgment on the Pleadings (doc. 7), be DENIED as moot.

3. That the clerk be directed to close the file.

At Pensacola, Florida.

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten days after being served a copy thereof.Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11^th Cir. 1988).