MCKIVER v. MOSS et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
KENYTA MCKIVER,
Plaintiff,
v. 	Case No. 5:25-cv-290-AW-MJF
ROBERT MOSS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
The undersigned recommends that this case be dismissed because
Plaintiff failed to comply with two court orders and applicable court rules,
and failed to pay the filing fee or properly move for leave to proceed in
forma pauperis.
BACKGROUND
Plaintiff, a Florida prisoner, commenced this civil action on October
2, 2025, by filing a pro se civil-rights complaint and an application for
leave to proceed in forma pauperis (“IFP”). Docs. 1, 2. Plaintiff’s IFP
application was deficient because Plaintiff failed to include the required
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6-month printout of transactions in his inmate trust account. See Doc. 2;
see also 28 U.S.C. § 1915(a)(2).
On October 17, 2025, the undersigned instructed Plaintiff of the
deficiency in his IFP application, and ordered Plaintiff to pay the $405.00
filing fee or file a new and complete application for leave to proceed in
forma pauperis that included a motion, supporting affidavit, prisoner
consent form and 6-month account printout. Doc. 4. The undersigned
imposed a compliance deadline of November 17, 2025, and warned
Plaintiff that failure to comply with the order likely would result in this
case being dismissed. Id. at 4.
To date, Plaintiff has not complied with the order dated October 17,
and has not responded to the 14-day show-cause order entered on
December 3, 2025. Doc. 5.1
1 A copy of the December 3 show-cause order was mailed to Plaintiff at
his address of record (the Bay County Jail). See Doc. 4. That mail was
returned to the court on December 16, 2025 with a notation: “Return to
Sender – Out of Jail.” Doc. 6. That same date, the clerk of court remailed
a copy of the December 3 order to Plaintiff at an address within the
Florida Department of Corrections. See Doc. 6. That mail has not been
returned to the court. Plaintiff has not notified the court of his current
address despite the court’s explicit instructions that he must do so. See
Docs. 3 and 6-1.
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D ISCUSSION
“Federal courts possess an inherent power to dismiss a complaint
for failure to comply with a court order.” Foudy v. Indian River Cnty.
Sheriff’s Off., 845 F.3d 1117, 1126 (11th Cir. 2017) (citations omitted);
N.D. Fla. Loc. R. 41.1 (authorizing the court to dismiss an action, or any
claim within it, “[i]f a party fails to comply with an applicable rule or a
court order”). A district court also may dismiss a civil action sua sponte
for failure to prosecute. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co.,
370 U.S. 626, 632 (1962). Furthermore, a district court may dismiss a
civil action when a plaintiff fails to pay the filing fee or demonstrate that
he qualifies to proceed in forma pauperis. See 28 U.S.C. § 1915(a); N.D.
Fla. Loc. R. 5.3; Wilson v. Sargent, 313 F.3d 1315, 1320–21 (11th Cir.
2002).
Plaintiff has failed to comply with two court orders and applicable
rules for the Northern District of Florida, failed to prosecute this action,
and failed to pay the filing fee or file a proper motion for leave to proceed
in forma pauperis. Plaintiff has offered no excuse for his failures and,
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consequently, has not shown good cause. Accordingly, dismissal of this
action is appropriate.
C ONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DISMISS this civil action without prejudice.
2. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 16th day of January, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this report and recommendation waives the
right to challenge on appeal the District Court’s order
based on unobjected-to factual and legal conclusions.
See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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