Smith v. Lamour et al

Filing 9

ORDER DENYING OBJECTION TO FEBRUARY 24, 2014 ORDER, construing Motion to be an 8 Objection to the Magistrate Judge's February 24 Order, overruling objection and denying 8 Motion (Objection). Plaintiff must pay the $30.00 filing fee on or before April 16, 2014. Failure to do so will result in the dismissal of this action without further notice. Signed by Judge John E. Steele on 3/27/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH N. SMITH,
Plaintiff,
vs.

Case No.

2:14-cv-90-FtM-29DNF

DR. JACQUES LAMOUR, MR. PRICE, and
GEO CARE, LLC,
Defendants.
___________________________________
ORDER DENYING OBJECTION TO FEBRUARY 24, 2014 ORDER
This matter comes before the Court upon review of Plaintiff’s
“motion in opposition to assessment of filing fees” (Doc. #8,
motion), filed March 7, 2014.

Plaintiff opposes the Court’s

February 24, 2014 Order (Doc. #6, Order) granting his motion for
leave to proceed as a pauper, but assessing him a $30.00 one-time
partial, filing fee pursuant to Local Rule 4.07(a)(M.D. Fla. 2009).
Plaintiff was ordered to pay this $30.00 one-time, partial filing
fee on or before March 12, 2014, or face dismissal of this action
without further notice.

See Order at 2.

Instead of complying with

the Court’s February 24, 2014 Order, Plaintiff files the instant
motion objecting to the assessment of the $30.00 filing fee.
Plaintiff states that he files the instant motion under “all
applicable rules of Federal Rules of Civil Procedure,” and does not
cite to any particular rule.

Motion at 1 (errors in original).

Thus, the Court will construe the motion to be an “objection” to
the Magistrate Judge’s February 24, 2014 Order.

Plaintiff argues

that he is not subject to “28 U.S.C. § 1915(2)” pursuant to
Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002).

See Motion at 1.

Plaintiff does not state that he cannot afford to pay the $30.00
fee.

Instead, Plaintiff submits that Troville “is a ‘blanket’

golden rule absolving all residents at the Florida Civil Commitment
Center” from paying any filing fees.

Id. at 2.

Plaintiff argues

that Eleventh Circuit precedent overrules this Court’s Local Rules.
Id.

If the Court does not grant Plaintiff the relief he seeks,

then he requests that the Court certify this issue for the Eleventh
Circuit Court of Appeal.

Id. at 3.

Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court may reconsider
or review the Magistrate Judge’s Order on a pretrial matter if
shown that it was clearly erroneous or contrary to law.

“The judge

may also receive further evidence or recommit the matter to the
magistrate judge with instructions.”

Id.

Parties instituting a civil action, suit, or a proceeding in
the district court are required to pay the clerk at the time of
filing

the

requisite

Alternatively,

a

filing

person

may

fee.1
commence

28

U.S.C.

an

action

§

1914(a).

without

the

prepayment of fees, if the party accompanies the filing of his
pleading with an affidavit of indigence.
Local Rule 4.07(a)(M.D. Fla. 2009).

See 28 U.S.C. § 1915(a),

Pursuant to a portion of the

Prison Litigation Reform Act, “prisoners” may proceed in forma

1

A habeas action is subject to a $5.00 filing fee.
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pauperis, but are still assessed the full filing fee.

See 28

U.S.C. § 1915(3)(b)(1). Additionally, Local Rule 1.03(e)(M.D. Fla.
2009) affords “prisoners” thirty (30) days to provide the Court
with the requisite filing fee or an application to proceed in forma
pauperis

before

the

action

is

subject

to

dismissal

without

prejudice.
Here, Plaintiff sought leave to proceed as a pauper under §
1915(a)(1).

See

Doc. #2.

The Court granted Plaintiff’s motion,

but assessed a one-time fee of $30.00 pursuant to Local Rule
4.07(a) (M.D. Fla. 2009).

See Order.

Local Rule 4.07, which is

entitled “in forma pauperis proceedings,” states that the Court
“may enter such other orders as shall seem appropriate to the
pendency of the cause, including an order that the party seeking
leave to proceed in forma pauperis shall pay a stated portion of
the Clerk’s and/or Marshal’s fees within a prescribed time, failing
which the action may be dismissed without prejudice.”

Id.

This Court has always recognized that plaintiffs, who are
civilly committed at the FCCC, are not considered “prisoners” and
has never applied any portion of the Prison Litigation Reform Act
to them.

Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002).

In

Troville, the district court mistakenly applied portions of the
Prison Litigation Reform Act to a case filed by a civilly committed
plaintiff and assessed the plaintiff the full $350.00 filing fee.
See generally id.

Here, the Magistrate Judge did not assess

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Plaintiff the full filing fee and did not apply any portion of the
Prison Litigation Reform Act to Plaintiff’s case.
Court

is

unpersuaded

by

Plaintiff’s

arguments

Further, this
that

Troville

prevents this Court from assessing civilly committed plaintiff any
filing fee whatsoever.

The Court is not aware of any binding

precedent that would prevent the Court from assessing civilly
detained, or civilly committed, plaintiffs a “reasonable” fee for
filing a civil rights action.

Thus, pursuant to Local Rule 4.07,

the Court assessed Plaintiff a one-time $30.00 filing fee (as
opposed to the full $400.00 filing fee).

In calculating this fee,

the Court relied upon Plaintiff’s motion for leave to proceed in
forma pauperis and copies of his account statement reflecting
average balances over $600.00.

Thus, the Court determined that a

reasonable fee would be $30.00, which is 20% of his average balance
in his FCCC account.
Based

on

the

foregoing,

Plaintiff’s

objections

Magistrate Judge’s February 24 Order are overruled.

to

the

The Court

determines that the Magistrate Judge’s order assessing Plaintiff a
one-time $30.00 filing fee was not clearly erroneous or contrary to
the law.

Plaintiff does not state that he cannot afford the fee.

Thus, Plaintiff must pay the $30.00 filing fee on or before April
2, 2014.

The Court will not entertain any additional questions or

motions concerning the $30.00 filing fee.

Plaintiff’s failure to

comply with the Court’s Order will result in the dismissal of this

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action without further notice. Additionally, the Court declines to
certify this issue for the appellate court.
ACCORDINGLY, it is hereby ORDERED:
1.

Plaintiff’s motion construed to be an objection to the

Magistrate Judge’s February 24 Order (Doc. #8) is overruled and the
motion is denied.
2.

Plaintiff must pay the $30.00 filing fee on or before

April 16, 2014.

Failure to do so will result in the dismissal of

this action without further notice.
DONE AND ORDERED at Fort Myers, Florida, on this
of March, 2014.

sa: alr
Copies: All Parties of Record

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27th

day