CARLSON v. JOSEPH

• Court: District Court, N.D. Florida
• Decided: October 15, 2021
• Docket: 3:21-cv-00820
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

JAMES ROBERT CARLSON,

Petitioner,

v. Case No. 3:21-cv-820-LC/MJF

M.V. JOSEPH,

Respondent. / REPORT AND RECOMMENDATION Since filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, (Doc. 1), Petitioner James Robert Carlson has failed to pay the filing fee or file a motion for leave to proceed in forma pauperis, (Docs. 4, 7). For that reason, the District Court should dismiss this action. I. BACKGROUND On May 28, 2021, Petitioner, a prisoner convicted of federal offenses, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a supporting memorandum of law. (Docs. 1, 2). Petitioner alleges that his conviction is invalid because the “District Court was without Article III and legislative (18 USC 3041) authority to take any action.” (Doc. 1 at 2). On July 8, 2021, the undersigned ordered Petitioner to pay the $5.00 fee or file a motion for leave to proceed in forma pauperis. (Doc. 4). The undersigned imposed a deadline of August 9, 2021. The undersigned warned Petitioner that failure to comply with the undersigned’s order “likely would result in dismissal of

this action for failure to comply with an order of the court, failure to prosecute, and failure to pay the filing fee.” (Id. at 2). On August 5, 2021, Petitioner filed a motion requesting additional time to

comply with the undersigned’s July 8, 2021 order. (Doc. 5). According to Petitioner, the inmate that was providing Petitioner with legal assistance was unavailable. The undersigned granted Petitioner’s motion and extended Petitioner’s deadline to August 25, 2021. (Doc. 6). Petitioner did not comply with the undersigned’s order.

On September 10, 2021, the undersigned ordered Petitioner 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. 7).

The undersigned imposed a deadline of October 1, 2021. Petitioner again did not comply with the undersigned’s order. As of the date of this report and recommendation, Petitioner has not paid the $5.00 fee or filed a motion for leave to proceed in forma pauperis. Additionally,

Petitioner 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); 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. Petitioner neither paid the filing fee nor submitted a motion for leave to

proceed in forma pauperis at the time he filed his petition. The undersigned, therefore, directed Petitioner 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 Petitioner that his failure to do so likely would result in dismissal

of this action. (Doc. 4 at 2). But Petitioner failed to pay the filing fee or submit a fully completed motion for leave to proceed in forma pauperis. (Doc. 7). Despite the undersigned ordering Petitioner to show cause why this action should not be

dismissed, Petitioner did not explain why he failed to pay the filing fee or seek an extension of time to comply with the undersigned’s order. (Docs. 4). Thus, pursuant to 28 U.S.C. § 1914 and the Local Rules, the undersigned recommends that this

action be dismissed for failure to pay the filing fee. III. CONCLUSION Because Petitioner 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 15th day of October, 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.