Luis Olivares v. Warden, USP Coleman I

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 2, 2019
• Docket: 18-14299
• Status: Unpublished

Opinion

Case: 18-14299 Date Filed: 12/02/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14299 Non-Argument Calendar ________________________

D.C. Docket No. 5:18-cv-00384-WTH-PRL

LUIS OLIVARES,

Petitioner - Appellant,

versus

WARDEN, USP COLEMAN I,

Respondent - Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(December 2, 2019)

Before JORDAN, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM: Case: 18-14299 Date Filed: 12/02/2019 Page: 2 of 3

Luis Olivares, a federal prisoner, appeals the district court’s dismissal of his

pro se 28 U.S.C. § 2241 petition. The district court dismissed the petition for

failure to pay the required filing fee or file a request to proceed in forma pauperis

(IFP) in accordance with its local rules. On appeal, Olivares reiterates the merits

of his habeas petition, instead of challenging the district court’s dismissal of his

petition.

Olivares has abandoned his challenge to the district court’s dismissal of his

case because he has not briefed the issue on appeal. See Access Now, Inc. v.

Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (stating a legal claim

or argument that is not briefed on appeal is deemed abandoned).

In any event, the district court did not abuse its discretion by dismissing

Olivares’s habeas petition. See Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)

(reviewing the district court’s dismissal of an action for failure to comply with a

local rule for an abuse of discretion). The Middle District of Florida’s local rules

provide that:

The Clerk shall accept for filing all prisoner cases filed with or without the required filing fee or application to proceed in forma pauperis. However, a prisoner case will be subject to dismissal by the Court, sua sponte, if the filing fee is not paid or if the application is not filed within 30 days of the commencement of the action.

M.D. Fla. R. 1.03(e). The district court gave notice to Olivares of Local Rule

1.03(e), which required him to either pay the filing fee or move for IFP status,

2 Case: 18-14299 Date Filed: 12/02/2019 Page: 3 of 3

when it entered its standing order detailing the rules that pro se litigants were

required to follow. See Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir. 1982)

(holding the district court should not dismiss the action of a pro se plaintiff based

on a local rule when “there is nothing to indicate [the] plaintiff ever was made

aware of it prior to dismissal”). Because Olivares failed to follow the local rules,

the district court properly exercised its authority to sua sponte dismiss Olivares’s

claim without prejudice. See Fed. R. Civ. P. 41(b) (providing a district court has

authority to dismiss actions for failure to comply with local rules); Pond v. Braniff

Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972)1 (stating the district court may

exercise the power to dismiss actions for failure to comply with local rules

sua sponte). Additionally, the district court’s dismissal without prejudice allowed

Olivares to refile his petition should he pay the filing fee or apply for IFP. See

Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983)

(stating a dismissal without prejudice generally does not constitute an abuse of

discretion because the affected party may simply refile).

AFFIRMED.

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 3