Wagaman v. Deputy Smith

Filing 8

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge M. Hannah Lauck on 7/26/2018. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CLERK, U.S. D1srn1cr COURT
RICHr1r.c·m. VA

JUSTIN WAGAMAN,

Plaintiff,
Civil Action No. 3:18CV242

v.
D. DEPUTY SMITH,

Defendant.
MEMORANDUM OPINION

Plaintiff, a Virginia inmate, submitted this civil action. He also applied to proceed in

formapauperis. By Memorandum Order entered on April 27, 2018, the Court conditionally
docketed the action. Plaintiff indicated that he likely would be transferred to the Chesapeake
City Jail and provided an address for the facility. 1 Accordingly, the Clerk mailed the
Memorandum Order and accompanying forms to the Chesapeake City Jail address. On May 7,
2018, the United States Postal Service returned the April 27, 2018 Memorandum Order to the
Court marked, "RETURN TO SENDER" and "ADDRESSEE NOT IN OUR FACILITY"
because Plaintiff apparently relocated. By Memorandum Order entered on June 13, 2018, the
Court directed the Clerk to change Plaintiffs address to the Virginia Beach address on his
envelope and to mail this Memorandum Order to that address. At that time, the Court
conditionally docketed the action and directed Plaintiff to submit a statement under oath or
penalty of perjury that:

1

Although the envelope containing Plaintiffs April 11, 2018 Complaint bore a return
address of P.O. Box 6098, Virginia Beach, VA 23456, Plaintiff included the following notation
in his Complaint: "I, Justin H. Wagaman will likely be transferred to Chesapeake City Jail by
the time this form is received 400 Albemarle Dr. Chesapeake, VA 23322." (ECF No. 1-1, at 1.)

(A)
(B)
(C)
(D)

Identifies the nature of the action;
States his belief that he is entitled to relief;
Avers that he is unable to prepay fees or give security therefor; and,
Includes a statement of the assets he possesses.

See 28 U.S.C. § 1915(a)(l). The Court provided Plaintiff with the appropriate informapauperis
affidavit form for this purpose. This mailing was not returned as undeliverable.
Additionally, the Court directed Plaintiff to affirm his intention to pay the full filing fee
by signing and returning a consent to the collection of fees form. The Court warned Plaintiff that
a failure to comply with either of the above directives within thirty (30) days of the date of entry
thereof would result in summary dismissal of the action.
Plaintiff has not complied with the orders of this Court. Plaintiff failed to return a
completed informa pauperis affidavit form and a consent to collection of fees form.2 As a
result, he does not qualify for in forma pauperis status. Furthermore, he has not paid the
statutory filing fee for the instant action. See 28 U.S.C. § 1914(a). Such conduct demonstrates a
willful failure to prosecute. See Fed. R. Civ. P. 4l(b). Accordingly, this action will be
DISMISSED WITHOUT PREJUDICE.
An appropriate Order shall accompany this Memorandum Opinion.

~v

M. Hannah L
United States~s;rict Judge

26

Date: JUL
,u:u}
Richmond, Virginia

2

The inmate account summary from the institution indicates that Plaintiff was "(s]till
here"asofJune20,2018. (ECFNo. 7,at 1.)
2