Harpo v. Magistrate Court of Fulton County et al
Filing
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OPINION AND ORDER adopting 4 Final Report and Recommendation and that this action is DISMISSED WITHOUT PREJUDICE pursuant to Local Rule 41.3 A.(2). Signed by Judge William S. Duffey, Jr. on 5/15/2014. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILHY HARPO,
Plaintiff,
v.
1:14-cv-438-WSD
MAGISTRATE COURT OF
FULTON COUNTY, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Clayton Scofield’s Final
Report and Recommendation (“R&R”), which recommends that this action be
dismissed without prejudice for failure to obey a lawful Order of the Court [4].
I.
BACKGROUND
On February 14, 2014, Plaintiff, proceeding pro se, filed an application for
leave to proceed in forma pauperis (“IFP”), and a Complaint in which he asserted
several state law claims against Defendants, and alleged that the Defendants
violated his constitutional rights in connection with a landlord-tenant dispute. On
February 28, 2014, Magistrate Judge Scofield denied the Plaintiff’s IFP
application, and ordered the Plaintiff to submit a new affidavit of poverty or pay
the filing fee, within 14 days of entry of the R&R, because the IFP application did
not include any information regarding the Plaintiff’s employment history, or cash
held in a bank account, and Plaintiff did not answer other questions on the
application. The Magistrate Judge also found that Plaintiff’s answers to questions
regarding his monthly earnings were inconsistent with an IFP application
submitted by Plaintiff in another case pending before the Court. In Harpo v. City
of Sandy Springs, Plaintiff declared that he had earned an average of $1,250 per
month over the last 12 months, but in this action, Plaintiff claims that he had no
income over the same time period. No. 1:13-cv-4118-WSD (N.D. Ga. Dec. 19,
2013).
The Final R&R directed the Plaintiff to provide an explanation for the
apparent inconsistencies in his IFP applications, and admonished the Plaintiff that
a failure to submit a new IFP application or pay the filing fee within 14 days of the
R&R’s entry would result in a recommendation that this action be dismissed.
Plaintiff did not file a corrected IFP application or provide an explanation for the
apparent inconsistencies regarding his income on the IFP applications submitted to
the Court. On February 28, 2014, Magistrate Judge Scofield issued his Final R&R,
and recommended that this action be dismissed. Plaintiff did not object to the
R&R.
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II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982). A district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which objections have not been
asserted, the Court must conduct a plain error review of the record. United States
v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). Plaintiff has not objected to the
R&R and thus the R&R is reviewed for plain error.
B.
Analysis
Local Rule 41.3 provides that the Court may dismiss a civil case for want of
prosecution if a plaintiff fails to obey a lawful Order of the Court. L.R. 41.3 A.(2),
N.D. Ga. Plaintiff failed to comply with the deadline set by the R&R after being
admonished that if he failed to correct the IFP application and provide an
explanation for the inconsistencies in his submissions to the Court, this action
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would be dismissed. See id. Because Plaintiff failed to obey a lawful Order of the
Court, the Court finds no plain error in the Magistrate Judge’s recommendation,
and dismisses this action without prejudice.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Scofield’s Final R&R is
ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE pursuant to Local Rule 41.3 A.(2).
SO ORDERED this 15th day of May 2014.
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