Whittington v. Caldwell

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION JAMES WHITTINGTON, ) ) Plaintiff, ) ) v. ) CV 319-082 ) WARDEN ANTOINE CALDWELL, ) ) Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, incarcerated at Johnson State Prison in Wrightsville, Georgia, commenced the above-captioned civil rights case pro se and requested permission to proceed in forma pauperis (“IFP”). On November 13, 2019, the Court directed Plaintiff to return his Prisoner Trust Fund Account Statement and Consent to Collection of Fees forms within thirty days and advised Plaintiff all prisoners, even those proceeding IFP, must pay the filing fee of $350.00 in full. 28 U.S.C. § 1915(b)(1). Plaintiff was cautioned failure to respond would be an election to have this case voluntarily dismissed without prejudice. (See doc. no. 6.) The time to respond has passed, and Plaintiff has not submitted the documents required by the Court’s November 13th Order. Although Plaintiff returned the Prisoner Trust Fund Account Statement, (doc. no. 7), he did not return the Consent to Collection of Fees form. Nor has he provided the Court with any explanation why he has not complied with the Court’s Order that he return both forms.

Plaintiff cannot proceed IFP unless he submits the requisite Trust Fund Account Statement and consents to collection of the entire $350.00 filing fee in installments. Wilson v. Sargent, 313 F.3d 1315, 1319, 1321 (11th Cir. 2002) (citing 28 U.S.C. § 1915). Plaintiff has been warned that failing to return the necessary IFP papers would be an election to have his case voluntarily dismissed. As Plaintiff has neither fulfilled the requirements for proceeding IFP, nor paid the full filing fee, the Court REPORTS and RECOMMENDS this case be DISMISSED without prejudice and this civil action be CLOSED.

SO REPORTED and RECOMMENDED this 20th day of December, 2019, at Augusta, Georgia.

□ UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA