United States District Court, D. Minnesota
STEPHEN LAWRENCE TODD, JR., also known as Stephen Lee Blanks, Plaintiff,
NILDA ACEVEDO and RAYMOND PETER, Defendants.
N. ERICKSEN United States District Judge
matter is before the Court on a Report and Recommendation
(“R&R”) issued by the Honorable Steven E.
Rau, United States Magistrate Judge, on October 13, 2016.
(Docket No. 7.) Plaintiff Stephen Lawrence Todd, Jr. objected
to the R&R. (Dkt. No. 8.) The Court has conducted a de
novo review of the record. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b)(3).
Based on that review, the Court overrules Todd's
objection and accepts the recommended disposition insofar as
it recommends dismissal for lack of subject-matter
jurisdiction, denial of Todd's application to proceed in
forma pauperis (“IFP application”), and
collection of the district court filing fee from Todd's
prison trust account. The Court also modifies the recommended
disposition for the reasons that follow.
DISMISSAL OF THE ACTION
R&R recommended dismissal of this action for failure to
prosecute or, in the alternative, for lack of subject-matter
jurisdiction. (Dkt. No. 7.) Jurisdiction is a threshold
requirement that takes precedence over other considerations.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
577 (1999) (acknowledging the near “absolute
purity” of the “jurisdiction-first rule, ”
which bends only in extraordinary cases). If a court lacks
subject-matter jurisdiction on the face of the complaint, the
action must be dismissed in its entirety. Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006); see Sanders
v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987);
reviewing Todd's Complaint, the Court agrees that the
Court lacks subject-matter jurisdiction; on its face, the
Complaint does not assert a federal question, nor does there
appear to be diversity jurisdiction. Accordingly, the Court
dismisses the action for this reason. Because the Court is
required to dismiss on this ground, the Court need not decide
whether the “drastic and extremely harsh
sanction” of dismissal for failure to prosecute is
appropriate in this case. DiMercurio v. Malcom, 716
F.3d 1138, 1140 (8th Cir. 2013) (quoting Skelton v.
Rapps, 187 F.3d 902, 908 (8th Cir. 1999)).
DENIAL OF THE IFP APPLICATION
R&R recommends denial of Todd's IFP application, in
connection with dismissal, because Todd failed to submit a
complete certified prison trust fund account statement.
(See Dkt. No. 7.) Todd claims in his objection that
he submitted the required financial documentation.
(See Dkt. No. 8.) However, the Court agrees that
Todd has not provided a complete certified prison trust
may deny IFP applications for failure to provide a complete
certified prison trust fund account statement. See Yates
v. Baldwin, 633 F.3d 669, 672 (8th Cir. 2011). However,
because the Court is dismissing the action for lack of
subject-matter jurisdiction, Todd's IFP application is
denied as moot on this ground. See Grover-Tsimi v. Am.
Laser Ctrs., LLC, No. 09-2729, 2010 WL 550973, at *1 (D.
Minn. Feb. 9, 2010); Peroceski v. Bryant-Wolf, No.
07-3930, 2008 WL 880004, at *2 (D. Minn. Mar. 28, 2008).
though the action is dismissed, and Todd's IFP
application is denied, Todd must still pay the $350 district
court filing fee. See 28 U.S.C. § 1915(b)(1)
(“[I]f a prisoner brings a civil action . . . in forma
pauperis, the prisoner shall be required to pay the full
amount of a filing fee.”); see also Peroceski,
2008 WL 880004, at *2 (requiring payment of the unpaid
balance of the $350 filing fee when denying an IFP
application). Courts may collect this fee by ordering partial
payments from a prisoner's trust account. See 28
U.S.C. § 1915(b)(2). The R&R recommended that the
Court order the agency having custody of Todd to forward such
payments to the Clerk of Court. (See Dkt. No. 7.)
indicated in a page attached to the Complaint, however, his
release date from prison was October 28, 2016-fifteen days
after the R&R was issued. (See Dkt. No. 1.) A
search on the Minnesota Department of Corrections website
confirms he was released on this date and is currently on
supervised release. Despite Todd's release from prison, he
still remains liable for the filing fee. See In re
Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)
(“[T]he PLRA makes prisoners responsible for their
filing fees the moment the prisoner brings a civil
action . . . .” (emphasis added)). Todd's
release may make it impossible to collect partial payments
from his prison trust account. Therefore, the Court orders
that Todd is assessed the full amount of the $350 filing fee,
payable immediately. In the event Todd's prison trust
account continues to be maintained or he returns to prison,
the Court also orders the agency having custody of Todd to
forward payments in accordance with 28 U.S.C. §
the R&R did not determine whether dismissal of this
action counts as a strike against Todd for the purposes of 28
U.S.C. § 1915(g). This section provides that a prisoner
may not bring a civil action or appeal in forma pauperis if
the prisoner brought a civil action or appeal on three or
more prior occasions “that was dismissed on the grounds
that it [was] frivolous, malicious, or fail[ed] to state a
claim upon which relief may be granted.” Dismissal of a
civil action for lack of subject-matter jurisdiction does not
fall within these grounds. See Moore v. Maricopa Cty.
Sheriff's Office, 657 F.3d 890, 893-94 (9th Cir.
2011); Iverson v. Dep't of Corr., No. 07-4710,
2008 WL 205281, at *1, 6 (D. Minn. Jan. 24, 2008). Therefore,
dismissal of this action will not count as a strike against
Todd under § 1915(g).
IT IS ORDERED THAT:
1. Plaintiff's objection to the Report and Recommendation
[Dkt. No. ...