Luis Hernandez v. Florida Department of Corrections

USCA11 Case: 21-12449 Document: 32-1 Date Filed: 04/07/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12449
Non-Argument Calendar
____________________
LUIS HERNANDEZ,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Secretary, Florida Department of Corrections,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60768-MGC
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2 Opinion of the Court 21-12449
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Before WILSON, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Luis Hernandez, a Florida prisoner proceeding pro se, ap-
peals the district court’s order dismissing his 28 U.S.C. § 2254 peti-
tion for failure to pay the filing fee, and its order denying reconsid-
eration. On appeal, Hernandez argues that the district court
abused its discretion when it dismissed his § 2254 petition because
he paid the filing fee two weeks before it was due. The Secretary
of the Florida Department of Corrections (Florida) argues that we
lack jurisdiction over this appeal because the notice of appeal was
untimely filed, and the district court did not enter a final appealable
order. Florida also argues that the district court did not abuse its
discretion because Hernandez’s failure to comply with the court’s
order justified the dismissal of his petition. After careful review,
we affirm.
First, we have jurisdiction over this appeal. Under federal
law, a pro se prisoner’s court filing is deemed filed on the date when
it is delivered to prison authorities for mailing. Fed. R. App. P. 4(c);
see Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009).
Hernandez delivered his notice of appeal to the corrections officer
on July 12, 2021, as the stamped envelope indicates. Because Her-
nandez filed a motion for reconsideration of the district court’s dis-
missal order, his time to appeal was tolled until the district court
resolved Hernandez’s motion for reconsideration. Fed. R. App. P.
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21-12449 Opinion of the Court 3
4(a)(4)(A). Florida’s argument that this court lacks jurisdiction to
hear Hernandez case because it was a dismissal without prejudice
is incorrect. See Maharaj v. Sec’y for Dep’t of Corr., 304 F.3d 1345,
1349 (11th Cir. 2002) (per curiam) (affirming a district court’s dis-
missal without prejudice of a § 2254 petition).
Next, the district court did not abuse its discretion in dismiss-
ing Hernandez’s petition without prejudice for failure to comply
with court orders. 1 Although we hold pro se pleadings to a less
stringent standard, Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168
(11th Cir. 2014), pro se litigants are required to comply with appli-
cable procedural rules, Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007) (per curiam).
Under Federal Rule of Civil Procedure 41(b), a district court
may dismiss a claim if the plaintiff fails to comply with a court or-
der. But the discretion afforded under Rule 41(b) is not unlimited,
and a district court may only dismiss a case with prejudice as a last
resort in exceptional circumstances. Zocaras v. Castro, 465 F.3d
479, 483 (11th Cir. 2006). When moving for reconsideration fol-
lowing a dismissal, “[t]he only grounds for granting [a motion for
reconsideration] are newly-discovered evidence or manifest errors
1 We review for an abuse of discretion a district court’s dismissal for failure to
comply with rules of court. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.
2006). “While dismissal is an extraordinary remedy, dismissal upon disregard
of an order, especially where the litigant has been forewarned, generally is not
an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
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4 Opinion of the Court 21-12449
or law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(per curiam) (quotation marks omitted).
Shortly after Hernandez filed his § 2254 petition, the district
court entered an order directing Hernandez to pay the $5.00 filing
fee or move for leave to proceed in forma pauperis by May 13,
2021. See 28 U.S.C. § 1914(a) (“The clerk of each district court shall
require the parties” filing a writ of habeas corpus pay $5.); see also
Rule 3(a) of the Rules Governing Section 2254 Cases in the United
States District Courts. Within the order, the district court ex-
plained that if he failed to do either of those by that date, it would
dismiss the case. On May 18, 2021, the district court dismissed Her-
nandez’s § 2254 petition for failure to comply with court orders.
The district court had not received the filing fee or a motion to
proceed in forma pauperis. On June 14, 2021, Hernandez moved
for reconsideration of the dismissal order, providing evidence that
his family bought a $5.00 money order made out to the district
court clerk of court and a stamped envelope. The district court
denied his motion for reconsideration.
We cannot say that the district court abused its discretion
when it clearly explained to Hernandez what was required of him,
and he failed to follow those orders. Although Hernandez showed
that a money order was bought to pay his filing fee, the evidence
does not show that it was sent to or received by the court. Specifi-
cally, the district court noted that Hernandez provided no affidavit
from a family member saying it was sent and there was no record
that the court had received the money order. Thus, the evidence
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21-12449 Opinion of the Court 5
that he submitted with his motion for reconsideration was insuffi-
cient to establish that his family had actually paid the filing fee. Ac-
cordingly, we affirm.
AFFIRMED.