ANTHONY K. JONES, Plaintiff,
UNIVERSITY OF MINNESOTA CROOKSTON, Defendant.
REPORT AND RECOMMENDATION
FRANKLIN L. NOEL, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge on Plaintiff's application for leave to proceed in forma pauperis, ("IFP"), as permitted by 28 U.S.C. § 1915. (Docket No. 2.) The matter has been referred to this Court for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, it is recommended that Plaintiff's IFP application be denied, and that this action be dismissed without prejudice.
Plaintiff, a Minnesota state prison inmate, commenced this action by filing a complaint seeking relief under 42 U.S.C. § 1983. (Docket No. 1.) He did not pay any filing fee for this case, but instead submitted the application for IFP status that is now before the Court.
Because Plaintiff is a prisoner, his IFP application is subject to the requirements of the Prison Litigation Reform Act of 1995, ("PLRA"). This means, inter alia, that he is required to pay an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). In this case, Plaintiff's initial partial filing fee, under the formula set forth at § 1915(b)(1), is $6.77.
By order dated July 19, 2013, (Docket No. 5), Plaintiff was instructed to pay his initial partial filing fee of $6.77 within 30 days. The Court's order expressly advised Plaintiff that if he failed to pay the prescribed amount within the time allowed, he would be deemed to have abandoned this action, and it would be recommended that his case be dismissed pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute.
After Plaintiff received the order directing him to pay his initial partial filing fee, he requested a ten-day extension of the deadline for paying his initial partial filing fee. (Docket No. 6.) That request was granted, (see Order dated August 6, 2013, [Docket No. 7]), and the deadline for paying the initial partial filing fee was thereby extended to August 28, 2013.
The extended deadline for paying the initial partial filing fee has now passed, and Plaintiff still has not tendered any fee payment, nor has he offered any excuse for his failure to do so. Therefore, in accordance with the Court's prior order in this case, it is now recommended that Plaintiff be deemed to have abandoned this action, and that the action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). See In re Smith , 114 F.3d 1247, 1251 (D.C.Cir. 1997) (failure to pay initial partial filing fee required by § 1915(b)(1) "may result in dismissal of a prisoner's action"); Amick v. Ashlock , 113 Fed.Appx. 191, 192 (8th Cir. 2004), (unpublished opinion) (prisoner action can properly be dismissed where prisoner fails to pay initial partial filing fee as ordered); Henderson v. Renaissance Grand Hotel , 267 Fed.Appx. 496, 497 (8th Cir. 2008) (unpublished opinion) ("[a] district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order"); Link v. Wabash Railroad Co. , 370 U.S. 626, 630-31 (1962) (recognizing that a federal court has the inherent authority to "manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases").
Having determined that this action should be summarily dismissed pursuant to Rule 41(b), the Court will further recommend that Plaintiff's pending IFP application, (Docket No. 2), and motion for appointment of counsel, (Docket No. 4), be summarily denied.
Based upon the above, and upon all the records and proceedings herein,
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's application to proceed in forma pauperis, (Docket No. 2), be DENIED;
2. Plaintiff's motion for appointment of counsel, (Docket No. ...