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Williams v. Dallas County Sheriff

United States District Court, N.D. Texas, Dallas Division

May 10, 2019

JERRY WILLIAMS, #018047970, Plaintiff,
v.
DALLAS COUNTY SHERIFF, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order No. 3-251, this pro se prisoner case has been automatically referred for full case management. Based on the relevant filings and applicable law, the case should be dismissed for failure to prosecute or follow court orders.

         I. BACKGROUND

         On March 27, 2019, the pro se prisoner plaintiff filed this action against the Dallas County Sheriff. (See doc. 3.) By Notice of Deficiency and Order dated April 1, 2019, he was notified that he had not filed his complaint on the appropriate form and either paid the filing fee or submitted an application to proceed in forma pauperis (IFP). (See doc. 4.) Attached to the order were copies of the civil rights complaint form and an IFP application. See Id. The order specifically advised the plaintiff that he must file his complaint on the proper form and either pay the filing fee or file his IFP application within thirty days, and that a failure to do so could result in the dismissal of his case. Id. The next day, his notice of change of address was received, and it showed that he was no longer in any jail or prison facility. (See doc. 5.) Because he was no longer in custody but still subject to the Prison Litigation Reform Act, on April 3, 2019, he was ordered to pay the full filing fee within twenty-one days. (See doc. 6.) The order also specifically warned that failure to timely pay the filing fee would result in a recommendation that the case be dismissed. (Id.) More than thirty days from the date of the initial notice of deficiency have passed, but the plaintiff has not filed his complaint on the proper form. Nor he timely paid the filing fee or filed anything else in this case since the April 3, 2019 order.

         II. PRISON LITIGATION REFORM ACT

         Because he filed this action while a prisoner, the plaintiff was subject to the Prison Litigation Reform Act (PLRA). The PLRA provides that a prisoner who brings a civil action “shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1).[1] Under the PLRA, prisoners may not file an action or an appeal without prepayment of the filing fee in some form. Gay v. Tex. Dep't of Corr. State Jail Div., 117 F.3d 240, 241 (5th Cir. 1997) (citing § 1915(b)(2)). A prisoner who is granted leave to proceed IFP must still pay the filing fee. If leave to proceed IFP is granted, the court assesses and collects an initial partial filing fee from the custodial institution, which will subsequently withdraw funds from the prisoner's inmate trust account and forward those funds to the Court in installments. Id. at § 1915(b)(1) and (2); Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000). The provision that allows for payment of the filing fee in installments only applies while the prisoner remains in custody. See 28 U.S.C. § 1915(b)(2). Where the prisoner is no longer in custody, withdrawal of funds from his inmate trust account to pay the fee in installments is no longer an option. Mabry v. TDCJ, No. 4:10CV520, 2013 WL 4522684, at *1 (E.D. Tex. Aug. 23, 2013). Nevertheless, a prisoner who brings an action remains subject to the provisions of the PLRA requiring full payment of the filing fee, even if he is subsequently released from custody. See Gay, 117 F.3d at 242.[2]

         Here, the plaintiff filed this action while he was in custody. Because he was subsequently released, he was required to pay the remainder of the full filing fee by the PLRA. See 28 U.S.C. § 1915(b)(1).

         III. INVOLUNTARY DISMISSAL

         Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962).

         The plaintiff failed to comply with the April 1, 2019 order that he file his complaint on the proper form despite a warning that failure to do so could result in dismissal of the case. (See doc. 4.) He was subsequently given twenty-one days to pay the filing fee and specifically warned that failure to do so would result in a recommendation that the case be dismissed. (See doc. 6.) He has failed to pay the fee or file anything else in the case since the April 3, 2019 order. Because he failed to comply with orders that he file his complaint on the proper form and pay the filing fee as required by the PLRA, his case should be dismissed. See Griffin v. Flores, No. 3:17-CV-198-G-BH, 2017 WL 6466615, at *2 (N.D. Tex. Nov. 27, 2017) (dismissing prisoner lawsuit under Rule 41(b) for failure to pay the remainder of the filing fee after his release from prison), adopted by, 2017 WL 6447237 (N.D. Tex. Dec. 18, 2017); Mabry, 2013 WL 4522684, at *1 (same); Kohoutek v. Dallas Cty. Sheriffs Dept., No. 3:10-CV-1780-B, 2010 WL 4721347 (N.D. Tex. Oct. 29, 2010) (same), adopted by, 2010 WL 4721350 (N.D. Tex. Nov. 19, 2010).

         IV. RECOMMENDATION

         This case should be dismissed without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute or follow court orders, unless the plaintiff files his complaint on the proper form and pays the filing fee within the time for objecting to this recommendation, or by some other deadline set by the Court.

         SO RECOMMENDED

         INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT ...


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