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Thomas Kelley v. Scott Fisher

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA


May 2, 2013

THOMAS KELLEY,
PLAINTIFF,
v.
SCOTT FISHER, DEFENDANT.

The opinion of the court was delivered by: Donovan W. Frank United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court upon pro se Plaintiff Thomas Kelley's objections (Doc. No. 11) to Magistrate Judge Jeanne J. Graham's March 20, 2013 Report and Recommendation (Doc. No. 10) insofar as it recommends that: (1) Plaintiff's application to proceed in forma pauperis be denied; and (2) this action be dismissed without prejudice.

The Court has conducted a de novo review of the record, including a review of the arguments and submissions of the parties, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b). The factual background for the above-entitled matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference for purposes of Plaintiff's objections.

Having carefully reviewed the record, the Court concludes that Plaintiff's objections offer no basis for departure from the Report and Recommendation. While Plaintiff has submitted a $5 partial filing fee, he has otherwise failed to comply with Magistrate Judge Graham's prior order, requiring that he submit an amended IFP application. (See Doc. No. 5.) Plaintiff's complaint is thus properly dismissed without prejudice. Should Plaintiff wish to file a separate petition for habeas relief under 28 U.S.C. § 2241, he must do so comprehensibly on the form prescribed for use in this District. (See Doc. No. 10 at 1-2 n.1.)

Based upon the de novoreview of the record and all of the arguments and submissions of the parties, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:

ORDER

1. Plaintiff Thomas Kelley's objections (Doc. No. [11]) to Magistrate Judge Jeanne J. Graham's March 20, 2013 Report and Recommendation are OVERRULED.

2. Magistrate Judge Jeanne J. Graham's March 20, 2013 Report and Recommendation (Doc. No. [10]) is ADOPTED.

3. Plaintiff's application to proceed in forma pauperis (Doc. No. [2]) is DENIED.

4. This action is DISMISSED WITHOUT PREJUDICE.

5. The Clerk of Court is directed to return the $5 filing fee to Plaintiff. LET JUDGMENT BE ENTERED ACCORDINGLY.

Donovan W. Frank

20130502

© 1992-2013 VersusLaw Inc.



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