Muhammed v. Drew
Filing
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OPINION AND ORDER that Magistrate Judge Gerrilyn G. Brills 3 Final R&R is REJECTED. IT IS FURTHER ORDERED that Plaintiff shall pay the filing fee on or before December 12, 2014, or SHOW CAUSE why the fee has not been paid by that date. Signed by Judge William S. Duffey, Jr on 11/17/2014. (anc)
to proceed IFP. On September 10, 2014, the Magistrate Judge recommended that
this action be dismissed for failure to obey a lawful Order of the Court. On
September 23, 2014, Plaintiff filed his objections to the R&R. Plaintiff claims that
he submitted a BP-199 Form for $5.00 to be taken out of his prison account on
August 8, 2014. Plaintiff attached a transactions summary of his prison account
showing that $5.00 for “Court fees” were deducted from his account on August 8,
2014.
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, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). 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 a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
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B.
Analysis
A prisoner’s failure to pay the filing fee may be caused by circumstances
beyond the prisoner’s control, including whether prison officials have timely
processed the prisoner’s request to withdraw funds from his account.
Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002). Before a prisoner’s
complaint is dismissed for failure to pay the filing fee, the Court is required to
“take reasonable steps . . . to determine whether the prisoner complied with the
[Court’s Order] by authorizing payment by prison officials. Should the district
court choose to communicate directly with the custodial institution regarding the
inmate’s authorization of payment, and receive information that any non-payment
was the inmate’s fault, the court must give the inmate a reasonable opportunity to
respond to this information, through, for example a show cause order or the
opportunity to make objections to a magistrate’s report.” Id. A complaint should
not be dismissed for non-payment if the Court finds that the prisoner authorized the
prison officials to withdraw funds from his account. Id.
On November 17, 2014, the Court’s Financial Administrator contacted
Tenneisha Robinson (“Robinson”), a Correctional Counselor at the United States
Penitentiary in Atlanta, Georgia (“Penitentiary”), to inquire whether the
Penitentiary had withdrawn the required filing fee from Plaintiff’s account.
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Robinson confirmed that $5.00 were withdrawn from Plaintiff’s account, but the
amount was “credited back” to his account on September 23, 2014. Robinson did
not know why the filing fee was reimbursed and, stated that she would contact
Plaintiff to determine the reason for reimbursement.
Upon de novo review of the R&R, the Court concludes that Plaintiff’s
Petition should not be dismissed for failure to obey a lawful Order of the Court.
The evidence shows that Plaintiff requested the prison officials to withdraw the
filing fee from his account, and the filing fee was, in fact, withdrawn on August 8,
2014. The Court is unable to determine why the fee was “credited back” to
Plaintiff’s account. Because the Court is unable to determine whether the failure to
timely pay the filing fee is attributable to Plaintiff or the prison officials, the
Magistrate Judge’s recommendation to dismiss this action without prejudice is not
adopted.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final
R&R is REJECTED. IT IS FURTHER ORDERED that Plaintiff shall pay the
filing fee on or before December 12, 2014, or SHOW CAUSE why the fee has not
been paid by that date.
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SO ORDERED this 17th day of November, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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