Albert v. Robberson et al

Filing 9

MEMORANDUM ON DISMISSAL entered. This action is DISMISSED without prejudice for want of prosecution. (Signed by Judge Alfred H Bennett) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

August 22, 2017
David J. Bradley, Clerk

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BRIAN ALBERT,
(SPN #02206887)
Plaintiff,
vs.
DEPUTY ROBBERSON, eta!.,
Defendants.

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CIVIL ACTION H-16-2929

MEMORANDUM ON DISMISSAL

The plaintiff, a former inmate ofthe Harris County Jail ("HCJ"), filed this civil rights action

in forma pauperis. On October 4, 2016, this court advised the plaintiff that he must pay the entire
filing fee of $350.00 when funds were available in his inmate account. (Docket Entry No. 3). On
October 28, 2016, the plaintiff advised the Clerk in writing ofhis current address, in accordance with
Local Rule 83.4. (Docket Entry No.4).
In an order entered on July 12, 2017, this court advised the plaintiff that the Prison Litigation
Reform Act amended 28 U.S.C. § 1915 so that a plaintiff proceeding in forma pauperis must now
pay the entire statutory filing fee of$350.00. (Docket Entry No.8). Though the statute now allows
an in forma pauperis plaintiff to begin a lawsuit without prepayment of the entire filing fee, the
plaintiff is still obligated to pay the entire filing fee over time.
Because the plaintiffhad advised the court of his new address on October 28, 2016, this court
determined that the plaintiff had been released from the custody of the HCJ. Citing Gay v. Tex.

Dep 't ofCarr. State Jail Div., 117 F.3d 240, 242 (5th Cir. 1997), this court advised the plaintiff that
the § 1915 filing fee requirement applied to the plaintiff because he filed the complaint while he was

a prisoner. 1
In its Order entered on July 12,2017, this court directed the plaintiffto pay $30.00, an initial
partial filing fee, by August 15, 2017. (Docket Entry No. 8). The plaintiff was further advised that
he was required to pay the remaining $320.00 in monthly installments of $20.00, until the entire
filing fee of$350.00 was paid.
The plaintiff has failed to pay the initial partial filing fee or the balance of the filing fee in
monthly installments of$20.00, as required by this court's Order entered on July 12,2017. (Docket
Entry No. 13). This court had admonished the plaintiff that failure to pay the initial partial filing fee
as well as the balance of the filing fee, or to show that the plaintiff had insufficient assets or means
by which to pay the initial partial filing fee within the time specified may result in a dismissal of the
plaintiff's complaint without further notice. (Docket Entry No. 8).
The plaintiff's failure to pursue this action forces this court to conclude that he lacks due
diligence. Under the inherent powers necessarily vested in a court to manage its own affairs, this
court determines that dismissal for want of prosecution is appropriate. See FED. R. Civ. P. 41 (b);
Link v. Wabash R.R., 370 U.S. 626 (1962); Clofer v. Perego, 106 F.3d 678 (5th Cir. 1997); 8 J.

MOORE, FEDERAL PRACTICE§ 41.51(3)(b) & (e) (3d ed. 2002). Upon a proper showing, relief from
this order may be granted in accordance with FED. R. CIV. P. 60(b). See Link, 370 U.S. at 635.
This action is DISMISSED without prejudice for want of P. osecution.
SIGNED at Houston, Texas, on __Ac.UwG~2._2~2=01..:.:.7__ 1

ALFRED H. BENNE T
UNITED STATES DISTRIC

1

The term "prisoner" means any person incarcerated or detained in any facility who is accused
of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and
conditions of parole, pretrial release, or diversionary program. 28 U.S.C. § 1915.