Brye v. Secretary for the Department of Corrections , 228 F. App'x 843 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 29, 2007
No. 06-11899 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00052-CV-T-23TBM
GRADY RODRIQUAS BRYE,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 29, 2007)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Grady Rodriquas Brye, a Florida prisoner proceeding pro se, appeals the sua
sponte dismissal of his petition for a writ of habeas corpus for failure to pay the
filing fee or file a motion for leave to proceed in forma pauperis in accord with
Rule 1.03(e) of the Local Rules of the Middle District of Florida. We granted a
Certificate of Appealability on the limited question “[w]hether the district court
properly dismissed the pro se habeas petition without first giving Brye notice and
opportunity to pay the filing fee or file the required documentation.”
Under Federal Rule of Civil Procedure 41(b), a district court is authorized to
dismiss an action for failure to comply with local rules, Kilgo v. Ricks, 983 F.2d
189, 192 (11th Cir. 1993), and the district court may exercise that power sua
sponte, see Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972). We
review the order of a district court that dismisses an action for failure to comply
with a local rule for abuse of discretion. Kilgo, 983 F.2d at 192.
We have held that 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.” Mitchell v. Inman, 682 F.2d 886, 887
(11th Cir. 1982) (vacating the dismissal of a pro se plaintiff’s complaint for failure
to comply with Local Rule 91.2 of the Northern District of Georgia). In
accordance with that precedent, the district court should not have dismissed Brye’s
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petition. The record does not establish that Brye had knowledge of the
requirements of Rule 1.03(e) before the district court dismissed his petition.
Although Brye filed a motion for leave to proceed in forma pauperis with his
initial petition for a writ of habeas corpus, there is no evidence that Brye was aware
of Rule 1.03 or the consequences of failing to file that motion with his petition. To
the contrary, it appears from the record, that Brye believed that, because his motion
for leave to proceed in forma pauperis with respect to his initial petition had been
granted, he was not required to obtain permission to proceed in forma pauperis
with respect to his second petition. In the light of Brye’s pro se status, the district
court should have determined that Brye was aware of the requirements of Rule
1.03(e) and the consequences of non-compliance before sua sponte dismissing
Brye’s petition. The district court abused its discretion when it dismissed the
petition without giving Brye notice of the rule and allowing him an opportunity to
comply. See Mitchell, 682 F.2d 887-88; Moore v. Fla., 703 F.2d 516, 520 (11th
Cir. 1983).
The order dismissing Brye’s complaint is VACATED and the petition is
REMANDED for further proceedings.
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