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Hines v. Smith

United States District Court, D. Minnesota

May 15, 2018

FREDRICK DEWAYNE HINES, Plaintiff,
v.
MICHELLE SMITH, Warden, “MNDOC” Oak Park Heights; TAMMY WHERELY, Associate Warden Administration; DAVID RHESUIS, Associate Warden Operation; SHAR MIKE, Program Director ACU/CX-5 Units; SHERILINDA WHEELER, Program Director; UNKNOWN MAGADANZ, Lieutenant ACI/CX-5, CX-7 Units; and Dan Meyer, Lieutenant ACU-CX-5 Units, individually and in their official capacities, Defendants.

          ORDER

          DAVID S. DOTY, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the court upon pro se plaintiff Fredrick Dewayne Hines's objection to the April 26, 2018, report and recommendation (R&R) of Magistrate Judge Steven E Rau, and application to proceed on appeal in forma pauperis. In his report, the magistrate judge recommended that the case be dismissed without prejudice for failure to prosecute.

         BACKGROUND

         The underlying facts are not in dispute and will not be repeated except as necessary. On November 1, 2016, Hines filed a complaint alleging that the Minnesota Department of Corrections (DOC) transferred him from the Minnesota Correctional Facility in Stillwater (MCF-Stillwater) to the Minnesota Correctional Facility in Oak Park Heights (MCH-OPH) in retaliation for filing federal lawsuits. He also alleges that inmates were assigned to cells near him in order to intimidate or kill him, and that MCF-OPH employees did nothing when he informed them of the threats on his life. He further contends that MCF-OPH employees took other actions to endanger his life and conspired with prisoners to kill him.

         On September 19, 2017, Hines filed a motion to amend his complaint because he wished to add defendants and allegations that defendants conspired to confiscate his legal documents and interfere with his ability to pursue his federal claim and raped him. See ECF Nos. 68, 80, 97. On October 23, 2017, the court granted Hines's motion to amend his complaint and directed Hines to file an amended complaint within thirty days. Hines v. Smith, No. 16-3797, 2017 WL 5593526, at *6 (D. Minn. Oct. 23, 2017). The magistrate judge instructed Hines that failure to timely file an amended complaint would result in a recommendation of dismissal. Id. Although his amended complaint was due on December 18, 2017, the court granted Hines two extensions, resulting in a deadline of April 13, 2018. See ECF Nos. 116, 120. Because Hines failed to timely file an amended complaint, the magistrate judge recommended that the case be dismissed without prejudice.

         On May 8, 2018, Hines filed a notice of appeal to the Eighth Circuit concerning the court's previous denial of injunctive relief and an application to proceed on appeal in forma pauperis. See ECF Nos. 135, 141, 143.

         DISCUSSION

         I. Objections

         The court reviews the R&R de novo. 28 U.S.C. § 636 (b)(1)(C); D. Minn. LR 72.2(b). After a careful review, the court finds that the R&R is well reasoned and correct.

         First, Hines objects to the R&R arguing that the defendants confiscated the amended complaint. The court, however, finds that this claim is not credible in light of the numerous memoranda, motions, and letters that Hines has successfully submitted to the court.

         Hines next requests that the court allow his initial complaint to serve as the operative complaint. In the interest of justice and to prevent further delay in adjudicating the merits of Hines's claims, the court will grant the request.[1]

         II. IFP Application

         A litigant who seeks to be excused from paying the filing fee for an appeal may apply for IFP status under 28 U.S.C. § 1915. See also Fed. R. App. P. 24(a). To qualify for IFP status, the litigant must demonstrate that he cannot afford to pay the full filing fee. 28 U.S.C. § 1915(a)(1). Even if a litigant is found to be indigent, however, IFP status will be denied if the court finds that the litigant's appeal is not taken in “good faith.” Id. § 1915(a)(3).

         Based upon the IFP application, the court is satisfied that Hines is financially eligible for IFP status. The court assesses “an initial partial filing fee of twenty percent of the greater of ... the average monthly deposits to the prisoner's account[] or the average monthly balance in the prisoner's account for the six-month period immediately preceding the filing of the ... notice of appeal.” Id. § 1915(b)(1). Hines's trust account certificate shows that the average monthly deposits for the preceding six months was $0.97, and his average monthly balance for the preceding six months was zero dollars. See ECF ...


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