GUARDINE
v.
DESANTIS
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The court recommended dismissal of the action because the plaintiff failed to pay the required filing fee or seek leave to proceed in forma pauperis after multiple opportunities and warnings.
The plaintiff initiated a section 1983 action but failed to pay the $402.00 filing fee. Despite being ordered to pay the fee or file a motion for leav…
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Since initiating this section 1983 action, Plaintiff Stephen Guardine, Jr., has failed to pay the filing fee. (Docs. 3, 4). For that reason, the District Court should dismiss this action.
I. BACKGROUND
On July 19, 2021, Plaintiff initiated this section 1983 action against Florida Governor Ron DeSantis1 and the Florida Department of Law Enforcement (“FDLE”) for violating Plaintiff’s rights under the Second Amendment to the United States Constitution. (Doc. 1). Plaintiff requested two forms of relief: (1) that this court expunge Plaintiff’s record to “restore all rights in eyes [sic] of all levels of all
On July 21, 2021, the undersigned ordered Plaintiff to pay the $402.00 fee (the $350.00 filing fee and a $52.00 administrative fee) or file a motion for leave to proceed in forma pauperis. (Doc. 3). The undersigned imposed a deadline of August
20, 2021. Plaintiff did not comply with the undersigned’s order. On August 24, 2021, the undersigned ordered plaintiff to explain and show cause why this case should not be dismissed for failure to pay the filing fee, failure to comply with the undersigned’s order, and failure to prosecute. (Doc. 4). The undersigned imposed a deadline of September 14, 2021. Plaintiff again did not comply with the undersigned’s order. As of the date of this report and recommendation, Plaintiff has not paid the
$402.00 fee or filed a motion for leave to proceed in forma pauperis. Additionally, Plaintiff has not responded to the undersigned’s show-cause order. II. DISCUSSION “A party who files or removes a civil case must simultaneously either pay any fee required under 28 U.S.C. § 1914 or move for leave to proceed in forma pauperis.” N.D. Fla. Loc. R. 5.3. Section 1914 authorizes the clerk of each district court to collect a filing fee from the party instituting any civil action, suit or proceeding in the district court. 28 U.S.C. § 1914. A court may dismiss an action for failure to pay the filing fee if the court first affords the plaintiff an opportunity to explain the failure. See Wilson v. Sargent, 313
F. 3d 1315, 1320-21 (11th Cir. 2002); 2 see also Thomas v. Butts, 745 F. 3d 309, 312- 13 (7th Cir. 2014). Additionally, under Rule 41.1 of the Local Rules of the United States District Court for the Northern District of Florida, “the Court may strike a pleading, dismiss a claim, enter a default on a claim, take other appropriate action, or issue an order to show cause why any of these actions should not be taken” if a party fails to comply with an applicable rule or court order. N.D. Fla. Loc. R. 41.1. Plaintiff neither paid the filing fee nor submitted a motion for leave to proceed in forma pauperis at the time he filed his complaint. The undersigned, therefore, directed Plaintiff to pay the filing fee or submit a completed motion for leave to proceed in forma pauperis in accordance with the Local Rules and specifically warned Plaintiff that his failure to do so likely would result in dismissal. (Doc. 3 at 2). But Plaintiff failed to pay the filing fee or submit a fully completed motion for leave to proceed in forma pauperis. (Doc. 4). Despite the undersigned ordering
III. CONCLUSION
Because Plaintiff failed to pay the filing fee despite being afforded opportunities to do so, the undersigned respectfully RECOMMENDS that:
1. This case be DISMISSED without prejudice.
2. The clerk of the court be directed to enter judgment accordingly and close this case. At Pensacola, Florida, this 22nd day of September, 2021.
/s/ Michael J. Frank Michael J. Frank United States Magistrate Judge
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.