United States District Court, D. Minnesota
S. DOTY, JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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.
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.
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.
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.
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
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).
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 ...