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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MARCHELLO JACKSON,

Plaintiff,

vs. Case No. 4:11cv216-SPM/WCS

EDWIN BUSS, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

This case was initiated in May, 2011, by Plaintiff, an inmate proceeding pro se,

and who was granted leave to proceed in forma pauperis. Doc. 9. The order explained

to Plaintiff that leave to proceed in forma pauperis is merely permission to "proceed

without the prepayment of the entire filing fee." Doc. 9, p. 1. Plaintiff was advised that

after payment of the assessed initial partial filing fee, he must make monthly payments

when funds are available in his inmate bank account "until the filing fee of $350.00 is

paid in full." Id., at 2. Prior to filing the in forma pauperis motion, Plaintiff was advised

at the outset that filing fees "are not refundable regardless of dismissal of the action." 

Doc. 3, p. 2. Plaintiff was advised that even if he is granted in forma pauperis status

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and pays an initial filing fee, his case may be dismissed if the complaint is frivolous,

malicious, or fails to state a claim. Id. 

After being granted in forma pauperis status, doc. 9, and being directed to file an

amended complaint, doc. 11, Plaintiff filed a motion to consolidate this case with

another case filed (case 4:11cv218). Doc. 12. The motion was denied in part because

Plaintiff provided no information about why the cases should be consolidated and

because in the other case cited by Plaintiff, there was only one defendant listed who

was not a Defendant named in this case. Doc. 13. Plaintiff was advised that the motion

to consolidate was denied, but he was free to voluntarily dismiss this case and proceed

only with the other case if he desired to do so. Id. If Plaintiff did want to continue with

this case, he was given until October 21, 2011, to file an amended complaint. Id. 

Plaintiff then filed a letter which was construed as a notice of voluntary dismissal

of this case. Doc. 14. Since Plaintiff requested a refund of money paid towards this

case and no further deductions from his inmate bank account, I entered an order

deferring ruling on that request for dismissal and advising Plaintiff that the relief sought

could not be provided. Doc. 15. Plaintiff appealed that order. Doc. 17.

Prior to a ruling being entered on Plaintiff's appeal, I entered an order advising

Plaintiff that he had been given until November 18, 2011, to file an amended complaint

if he wanted to proceed with this case. Doc. 18. Plaintiff was advised that during the

time his appeal was pending, that deadline would be stayed; however, Plaintiff was

warned that if my order was affirmed, Plaintiff would be required to expeditiously file the

amended complaint if he wanted to proceed. Id. He was further warned that if nothing

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was received, his previously filed notice of voluntary dismissal, would be accepted and

this case closed. Id. 

The order was affirmed by District Judge Stephan Mickle in late December, 2011. 

Doc. 19. Judge Mickle's order explained to Plaintiff that pursuant to § 1915(b)(1), a

prisoner is required to pay the fee even if the case is dismissed, and there is no right to

a refund. Doc. 19. Plaintiff was permitted to file an amended complaint by January 9,

2012, if Plaintiff desired to continue with this case. Id. The order again advised Plaintiff

that if nothing was received, the case would be dismissed based on Plaintiff's previously

filed notice of voluntary dismissal. Id. 

Plaintiff did not file the amended complaint, but on January 12th, he filed an

appeal to the Eleventh Circuit. Doc. 21. Plaintiff has not paid the filing fee for an

appeal, nor has Plaintiff filed a motion for leave to proceed in forma pauperis on appeal. 

Moreover, such an appeal is premature as this case is still pending and Plaintiff's notice

of appeal does not deprive this court of jurisdiction. An order that disposes of fewer

than all the claims of all the parties to an action is not final or immediately appealable to

the Court of Appeals unless the district court certifies the order for immediate appeal

pursuant to Fed. R. Civ. Proc. 54(b). 28 U.S.C. § 1291; Williams v. Bishop, 732 F.2d

885, 885-886 (11th Cir. 1984). The order Plaintiff sought to appeal does not dispose of

any claims in this case and, therefore, the Eleventh Circuit Court of Appeals does not

acquire jurisdiction. Because this court did not issue a Rule 54(b) certificate, Plaintiff's

attempted interlocutory appeal is invalid and this court has not lost jurisdiction. 

Plaintiff has been provided numerous opportunities to submit an amended

complaint if he desired to do so. He has not shown any indication that he wishes to

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proceed with this litigation. Therefore, it is recommended that Plaintiff's notice of

voluntary dismissal be accepted and this complaint be dismissed for failure to comply

with court orders and failure to prosecute. Since Plaintiff is pro se and may have

misunderstood that his "notice of appeal" (for which Plaintiff did not pay the filing fee)

does not deprive this court of jurisdiction to proceed, the fifteen day period of time to file

objections to this report and recommendation will provide Plaintiff with an opportunity to

demonstrate his willingness to proceed in this case and file the amended complaint. 

In light of the foregoing, it is respectfully RECOMMENDED that this case be

DISMISSED because Plaintiff has not filed the amended complaint as ordered, and

because Plaintiff previously filed a notice of voluntary dismissal. 

IN CHAMBERS at Tallahassee, Florida, on February 6, 2012.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. Alternatively, Plaintiff may file a motion for reconsideration which

will be referred to me within 14 days. 

Case No. 4:11cv216-SPM/WCS

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