Opinion
CV 119-045
05-17-2019
LOUIS WILLINGHAM, SR., Plaintiff, v. UNITED STATES OF AMERICA and CROWDER STEWART, LLP, Defendants.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff commenced the above-captioned case pro se and requested permission to proceed in forma pauperis ("IFP"). (Doc. nos. 1, 2.) On April 19, 2019, the Court denied the request to proceed IFP and directed Plaintiff to submit the full $400 filing fee within twenty-one days. (Doc. no. 6.) Specifically, the Court found Plaintiff was capable of paying the $400 filing fee because his income was $1,075 per month with $37,800 in unspecified assets and his expenses were only $865. (See id.) The deadline to pay the fee has passed, and Plaintiff has not paid the $400 or further communicated with the Court in any way to explain why he has not paid the fee.
A district court has authority to manage its docket to expeditiously resolve cases, and this authority includes the power to dismiss a case for failure to prosecute or failure to comply with a court order. Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)); see also Hyler v. Reynolds Metal Co., 434 F.2d 1064, 1065 (5th Cir. 1970) ("It is well settled that a district court has inherent power to dismiss a case for failure to prosecute . . . ."). Moreover, the Local Rules of the Southern District of Georgia dictate that an "assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice . . . [for] failure to prosecute a civil action with reasonable promptness." Loc. R. 41.1(c).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. --------
Local Rule 4.2(2) also provides that if the filing fee is not paid within twenty-one days of the denial of an IFP petition, the civil action will be dismissed. Finally, dismissal without prejudice is generally appropriate pursuant to Rule 41(b) where a plaintiff has failed to comply with a court order, "especially where the litigant has been forewarned." Owens v. Pinellas Cnty. Sheriff's Dep't, 331 F. App'x 654, 655 (11th Cir. 2009) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)); see also Loc. R. 41.1(b) (Court may dismiss an action sua sponte for "willful disobedience or neglect of any order of the Court").
Plaintiff's failure to pay the filing fee after an order from the Court directing him to do so, or to communicate with the Court about missing the May 10th deadline amounts not only to a failure to prosecute, but also an abandonment of his case. This is precisely the type of neglect contemplated by the Local Rules. The Court also finds the imposition of monetary sanctions is not a feasible sanction because Plaintiff has already chosen not to pay the filing fee necessary to commence a case in District Court. Accordingly, the Court REPORTS and RECOMMENDS this case be DISMISSED without prejudice.
SO REPORTED and RECOMMENDED this 17th day of May, 2019, at Augusta, Georgia.
/s/_________
BRIAN K. EPPS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA