Case: 18-14299 Date Filed: 12/02/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14299
Non-Argument Calendar
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D.C. Docket No. 5:18-cv-00384-WTH-PRL
LUIS OLIVARES,
Petitioner - Appellant,
versus
WARDEN, USP COLEMAN I,
Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 2, 2019)
Before JORDAN, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
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Luis Olivares, a federal prisoner, appeals the district court’s dismissal of his
pro se
28 U.S.C. § 2241 petition. The district court dismissed the petition for
failure to pay the required filing fee or file a request to proceed in forma pauperis
(IFP) in accordance with its local rules. On appeal, Olivares reiterates the merits
of his habeas petition, instead of challenging the district court’s dismissal of his
petition.
Olivares has abandoned his challenge to the district court’s dismissal of his
case because he has not briefed the issue on appeal. See Access Now, Inc. v.
Southwest Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (stating a legal claim
or argument that is not briefed on appeal is deemed abandoned).
In any event, the district court did not abuse its discretion by dismissing
Olivares’s habeas petition. See Kilgo v. Ricks,
983 F.2d 189, 192 (11th Cir. 1993)
(reviewing the district court’s dismissal of an action for failure to comply with a
local rule for an abuse of discretion). The Middle District of Florida’s local rules
provide that:
The Clerk shall accept for filing all prisoner cases filed with or without
the required filing fee or application to proceed in forma pauperis.
However, a prisoner case will be subject to dismissal by the Court, sua
sponte, if the filing fee is not paid or if the application is not filed within
30 days of the commencement of the action.
M.D. Fla. R. 1.03(e). The district court gave notice to Olivares of Local Rule
1.03(e), which required him to either pay the filing fee or move for IFP status,
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when it entered its standing order detailing the rules that pro se litigants were
required to follow. See Mitchell v. Inman,
682 F.2d 886, 887 (11th Cir. 1982)
(holding the district court should not dismiss the action of a pro se plaintiff based
on a local rule when “there is nothing to indicate [the] plaintiff ever was made
aware of it prior to dismissal”). Because Olivares failed to follow the local rules,
the district court properly exercised its authority to sua sponte dismiss Olivares’s
claim without prejudice. See Fed. R. Civ. P. 41(b) (providing a district court has
authority to dismiss actions for failure to comply with local rules); Pond v. Braniff
Airways, Inc.,
453 F.2d 347, 349 (5th Cir. 1972)1 (stating the district court may
exercise the power to dismiss actions for failure to comply with local rules
sua sponte). Additionally, the district court’s dismissal without prejudice allowed
Olivares to refile his petition should he pay the filing fee or apply for IFP. See
Dynes v. Army Air Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983)
(stating a dismissal without prejudice generally does not constitute an abuse of
discretion because the affected party may simply refile).
AFFIRMED.
1
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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