United States District Court, S.D. Texas, Brownsville Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
G. MORGAN, UNITED STATES MAGISTRATE JUDGE
March 11, 2019, Plaintiff Daniel Torres filed a prisoner
civil rights suit against eleven separate defendants. Dkt.
No. 1. Torres's suit revolves around claims that jail
guards assaulted him on two separate occasions while he was
suffering from a seizure. Id. Torres moved to
proceed in forma pauperis (“IFP
motion”). Dkt. No. 3.
three separate occasions, the Court has ordered Torres to
either supplement his IFP motion or pay an initial partial
filing fee. Dkt. Nos. 31, 34, 38. Torres has not responded to
any of these orders.
reviewing the record and the relevant case law, it is
recommended that Trevino's complaint be dismissed without
prejudice for want of prosecution, pursuant to FED. R. CIV.
March 11, 2019, Torres filed a prisoner civil rights
complaint in this case. Dkt. No. 1. On that same day, Torres
moved to proceed IFP. Dkt. No. 3. When the case was filed,
Torres was a prisoner at the Carrizales/Rucker Detention
Center. Dkt. No. 1.
March 18, 2019, the Court ordered Torres to complete a series
of interrogatories about his claims, to permit the Court to
determine whether the complaint stated a claim upon which
relief can be granted. Dkt. No. 18.
April 16, 2019, Torres filed the interrogatory answers. Dkt.
No. 28. Torres identified two separate instances in which he
suffered from a seizure and was assaulted by jail guards.
24, 2019, the Court ordered Torres to supplement his motion
to proceed IFP with a certified copy of his prison trust
account statement, as required by statute, no later than June
14, 2019. Dkt. No. 31. Torres was warned that failure to
comply could result in this case being dismissed without
prejudice for failure to obey a Court order. Id. The
order was mailed to Torres at Carrizales/Rucker. Dkt. No.
7, 2019, the mailing was returned to the Clerk's Office
with the notation that Torres was released from custody on
April 17, 2019. Dkt. No. 33.
16, 2019, the Court ordered Torres to show cause as to why
his case should not be dismissed for failing to provide a
certified copy of his prison trust account statement.
Carrizales/Rucker provided the Clerk's Office with a
forwarding address for Torres and a copy of the order was
sent to Torres's address. Dkt. No. 35. This mailing was
returned unopened, with the notation “Return to Sender;
Vacant.” Dkt. No. 37.
August 7, 2019, the Court issued an order, noting that while
Torres is no longer a prisoner, the Prison Litigation Reform
Act still applies to this case because he was incarcerated at
the time that he filed the complaint. Dkt. No. 38 (citing
Farley v. Simpson, 178 Fed.Appx. 340 (5th Cir.
2006); Gay v. Texas Dep't of Corr. State Jail
Div., 117 F.3d 240, 242 (5th Cir. 1997)). “Under
the PLRA, a prisoner is not entitled to commence an action or
file an appeal without prepayment in some form.”
Gay, 117 F.3d at 241.
Court then ordered Torres to pay an initial partial filing
fee of $20, no later than August 30, 2019. Torres was warned
that failure to timely pay the filing fee may result in a
recommendation that this case be dismissed for want of
prosecution. The order also noted that the Court would ...