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Torres v. Lucio

United States District Court, S.D. Texas, Brownsville Division

September 5, 2019

DANIEL TORRES, Plaintiff,
v.
OMAR LUCIO, et al., Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          RONALD G. MORGAN, UNITED STATES MAGISTRATE JUDGE

         On 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.

         On 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.

         After 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. P. 41(b).

         I. Background

         A. Factual Background

         On 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.

         On 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.

         On 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. Id.

         On May 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. 32.[1]

         On June 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.

         On July 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.

         On 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.

         The 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 ...


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