Coggins v. Town of Jackson's Gap (MAG+)

Filing 10

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Gene Coggins; it the Recommendation of the Mag Judge that this action be dismissed due to Plaintiff's failure to pay the filing fee; Objections to R&R due by 5/26/2009. Signed by Honorable Wallace Capel, Jr on 5/13/09. (vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION G E N E COGGINS, P l a in tif f , v. T O W N OF JACKSON'S GAP, D e f e n d a n ts . ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:09cv285-WKW

R E C O M M E N D A T IO N OF THE MAGISTRATE JUDGE
B y Order (Doc. #4) entered 9 April 2009, this Court set an ex parte hearing for 27 A p ril 2009, at 9:30 a.m., on Plaintiff's pending motion for leave to proceed in forma p a u p e ris (IFP). The Court determined to hold the hearing because "Plaintiff's affidavit [did] n o t provide sufficient information to permit the court to rule on the motion [for IFP]." (Doc. # 4 at 1). Plaintiff failed to appear for the hearing. The Order advised Plaintiff that his "failure to comply with [the] order may result in the court's denial of his request to waive the filing f e e in his case and proceed in forma pauperis, or in dismissal of the case." (Doc. #5). In an O rd e r dated 29 April 2009, this Court denied the Motion to proceed IFP and directed Plaintiff to pay the filing fee of $350.00 to the Clerk of the Court on or before 8 May 2009. (Doc. #8). P la in tif f has failed to pay the filing fee. O n 11 May 2009, Plaintiff filed a "Reply" to the Order of 29 April. See (Doc. #9). In that Reply, Plaintiff argued that, based on an ex parte hearing "conducted in a prior

month," everything about his personal income is "settled." (Doc. #9). The Court is aware o f a recent ex parte hearing, in another matter brought by Plaintiff, regarding Plaintiff's a b ility to proceed IFP. See Coggins v. Crouch, Civil Action No. 3:09cv64- MHT. Plaintiff's M o tio n for IFP in that matter was denied. In a Reply to the Order setting the hearing in this m a tte r, Plaintiff insisted that his financial status had not changed since the hearing denying h is request for IFP. (Doc. #6). Rather than ruling on Plaintiff's motion based on that prior h ea rin g and denial, the Court allowed Plaintiff to present additional information to support h is application to proceed IFP. Plaintiff failed to comply. P la in tif f failed to give the Court sufficient information to grant his motion to proceed IF P , thus the Court required a hearing on the motion. Plaintiff failed to appear for the h e a rin g . The Court then required Plaintiff to pay the filing fee. Plaintiff has failed to pay th e filing fee. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this ac tio n be DISMISSED due to Plaintiff's failure to pay the filing fee. It is further ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before 26 May 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual

findings in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ). D O N E this 13th day of May, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE