United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
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.
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.
PRISON LITIGATION REFORM ACT
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). 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.
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).
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).
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.
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.
FOR SERVICE AND NOTICE OF RIGHT ...