CRUZ BENITEZ v. USA, No. 1:2020cv01055 - Document 11 (Fed. Cl. 2021)

Court Description: UNREPORTED OPINION on 9 MOTION to Dismiss pursuant to Rule 12(b)(1) filed by USA, 8 MOTION for Leave to Proceed in forma pauperis filed by ELDER GABRIEL CRUZ BENITEZ. The Court grants 8 Motion for Leave to Proceed in forma pau peris; finds as moot 9 Motion to Dismiss - Rule 12(b)(1); and directs the clerk to dismiss the case without prejudice pursuant to Rule 41(b) for failure to prosecute and failure to comply with a Court order. Signed by Judge Ryan T. Holte. (scf) Service on parties made.

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In the United States Court of Federal Claims No. 20-1055 (Filed: 13 January 2020) NOT FOR PUBLICATION *************************************** ELDER GABRIEL CRUZ BENITEZ, * * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *************************************** ORDER I. Background On 17 August 2020, plaintiff, proceeding pro se, filed his complaint with this Court. See Pettioner’s [sic] Seeks Money-Mandating Pursuanto [sic] to 28 USCS § 1491(a)(1) for Punitive Damages, ECF No. 1. Plaintiff filed a motion to proceed in forma pauperis on 28 September 2020. See Application to Proceed In Forma Pauperis, ECF No. 8 (“Pl. Mtn. IFP”). On 2 October 2020, the government filed a motion to dismiss plaintiff’s complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). See Def.’s Mot. to Dismiss Plaintiff’s Compl., ECF No. 9. Plaintiff’s response to the government’s motion to dismiss was due 30 October 2020. See RCFC 7.2(b)(1). As of 3 November 2020, plaintiff had not filed a response to the government’s motion to dismiss. See Order, ECF No. 10. The Court therefore ordered plaintiff to respond to the government’s motion on or before 1 December 2020. Id. The Court stated, “[i]f plaintiff fails to respond by [1 December 2020], the Court will have no choice but to dismiss plaintiff’s complaint for failure to prosecute pursuant to RCFC 41(b).” Id. II. Plaintiff’s In Forma Pauperis Application As an initial matter, plaintiff requests the Court allow him to proceed in forma pauperis. See Pl. Mtn. IFP. Pursuant to 28 U.S.C. § 1915(a)(1), “any court of the United States may authorize the commencement . . . of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement . . . that the person is unable to pay such fees or give security therefor.” A plaintiff need not “be absolutely destitute to enjoy the benefit of the statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). An affidavit demonstrating a plaintiff is unable to pay the fee or -1- provide security and “still be able to provide himself and dependents ‘with the necessities of life,’” is sufficient. Id.; see also Waltner v. United States, 93 Fed. Cl. 139, 143 (2010) (quoting Fiebelkron v. United States, 77 Fed. Cl. 59, 62 (2007)) (stating the proper inquiry when considering an application to proceed in forma pauperis is whether “‘paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.’”). Plaintiff states in his application to proceed in forma pauperis: he is currently incarcerated, he is currently unemployed, he has not received money from any source besides family members, and he has no substantial assets. See Pl. Mtn. IFP. 1–2. Under these circumstances, plaintiff has sufficiently demonstrated he is unable to pay the Court’s filing fee. Plaintiff’s application to proceed in forma pauperis is therefore granted. III. Plaintiff’s Failure to Comply with the Court’s 3 November 2020 Order When a party fails to respond to the government’s motions, or to subsequent court orders, dismissal is not only appropriate but required to properly administer justice. “While dismissal of a claim is a harsh action, especially to a pro se litigant, it is justified when a party fails to pursue litigation diligently and disregards the court’s rules . . . .” Whiting v. United States, 99 Fed. Cl. 13, 17 (2011) (citing Kadin Corp. v. United States, 782 F.2d 175, 176–77 (Fed. Cir. 1986)). Furthermore, RCFC 41(b) provides that “[i]f the plaintiff fails to prosecute or comply with these rules or a court order, the court may dismiss on its own motion or the defendant may move to dismiss the action or any claim against it.” As pro se plaintiffs are, by their nature, unassisted, this Court may sometimes grant a pro se plaintiff greater lenience throughout the filing process. In keeping with this permissive leniency, the Court allowed plaintiff an additional 28 days to either file his response to the government’s motion to dismiss or show cause why his complaint should not be dismissed for failure to prosecute. Plaintiff failed to file any response to the government’s motion to dismiss his complaint or the Court’s 3 November order, and the Court must therefore dismiss the case pursuant to RCFC 41(b) for failure to prosecute and failure to comply with a Court order. IV. Conclusion Plaintiff has not submitted or filed documents of any sort with this Court since filing his motion to proceed in forma pauperis on 28 September 2020, despite the government filing a motion to dismiss and the Court ordering him to respond. The Court hereby: (1) GRANTS Mr. Cruz-Benitez’s motion to proceed in forma pauperis; (2) DENIES as MOOT the government’s motion to dismiss; and (3) directs the Clerk to DISMISS the case without prejudice pursuant to RCFC 41(b). IT IS SO ORDERED. s/ Ryan T. Holte RYAN T. HOLTE Judge -2- -3-

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