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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

GARY P. SALAMONE, 

 Plaintiff,

vs. Case No: 3:10cv412/LC/MD

STATE OF FLORIDA, et al.,

 Defendants.

REPORT AND RECOMMENDATION

This cause is before the court upon referral from the clerk. This case was

opened on September 24, 2010 upon plaintiff filing a “Motion For Court to Assign

Civil Action Number” (doc. 2) and a “Motion for Court to Rule on Original Motion to

Proceed” (doc. 3). These filings stemmed from plaintiff’s unsuccessful attempts to

intervene in the challenge to the federal health care law pending in Florida v. United

States Department of Health and Human Services, et al., Case Number

3:10cv91/RV/EMT. 

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In that case, plaintiff attempted to file a “Friend of the Court Brief” and later petitioned the court

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to intervene. (See Docs. 4, 20, Case No. 3:10cv91). On March 30, 2010, Judge Vinson returned

plaintiff’s brief without filing, and on April 23, 2010, denied plaintiff’s request to intervene. (See Docs.

6, 37 in Case No. 3:10cv91). Plaintiff later attempted to file a notice of change of address, which was

returned to him without filing. (See Doc. 45, Case No. 3:10cv91). On June 14, 2010, plaintiff filed

another motion to intervene, which was denied on June 15, 2010. (See Docs. 52, 53 in Case No.

3:10cv91). On August 9, 2010, plaintiff filed a “Motion to Correct Obvious Error in Court Record,”

claiming that Judge Vinson’s April 23, 2010 order did not accurately describe the true nature of

plaintiff’s challenge to the federal health care law. Plaintiff also requested issuance of summonses

to the lead plaintiff and the lead defendant in that case. Judge Vinson denied plaintiff’s motion on

August 10, 2010. (See Docs. 69, 70 in Case No. 3:10cv91). Plaintiff then attempted to file a “Motion

to Order Correction of Constitutional Deficiencies,” which Judge Vinson returned to him without filing

on August 27, 2010. (See Doc. 73 in Case No. 3:10cv91). The instant motions followed. The Clerk of

Court opened a new civil case, and referred the motions to the undersigned.
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In an order entered October 20, 2010, (doc. 5), the undersigned granted

plaintiff’s “Motion for Court to Assign Civil Action Number” to the extent a new civil

case had been opened and a case number assigned. The court denied plaintiff’s

“Motion for Court to Rule on Original Motion to Proceed.” Additionally, because

plaintiff had not filed a complaint and had neither paid the filing fee nor applied for

leave to proceed in forma pauperis, the court ordered plaintiff to submit the

following items within twenty-eight days: (1) a complaint or notice of voluntary

dismissal and (2) the $350.00 filing fee or a complete application to proceed in forma

pauperis. (Doc. 5). Plaintiff was warned that failure to comply with the order as

instructed would result in a recommendation that this case be dismissed for failure

to comply with an order of the court. 

Plaintiff did not comply with the October 20, 2010 order. Accordingly, on

November 29, 2010 this court issued an order directing plaintiff to show cause,

within fourteen (14) days, why this case should not be dismissed for failure to

comply with an order of the court. (Doc. 13). Plaintiff has responded. (Doc. 16). 

Although plaintiff asserts that he has filed a judicial complaint with the United States

Court of Appeals for the Eleventh Circuit, and that he “published” a complaint “on

the World Wide Web,” he has not filed a complaint in this court as he was ordered

to do. Further, although plaintiff states he is willing to allow the court to deduct the

$350.00 filing fee from the $400,000.00 settlement award he believes is due him, that

does not comply with the court’s order directing him to pay the filing fee within

twenty-eight days. As plaintiff was explicitly advised in the October 20, 2010 order,

before this case can proceed, he must either pay the fee or file a motion for leave to

proceed in forma pauperis. 

Because plaintiff’s response to the show cause order not only fails to show

plaintiff has been unable to comply with the court’s October 20, 2010 order, but also

affirmatively demonstrates he is choosing not to, this case should be dismissed.

Case No: 3:10cv412/LC/MD
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Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE for plaintiff’s failure

to comply with an order of the court. 

2. That the clerk be directed to close the file.

DONE AND ORDERED this 15 day of December, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen days after being served a copy hereof. Any different deadline

that may appear on the electronic docket is for the court’s internal use only, and

does not control. A copy of any objections shall be served upon any other parties. 

Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv412/LC/MD