Diaz vs. Big Muddy et al

Filing 64

ORDER ADOPTING 61 REPORT AND RECOMMENDATIONS: The Court ADOPTS Magistrate Judge Wilkerson's Report and Recommendation (Doc. 61 ) and DISMISSES the case without prejudice for Plaintiff's failure to respond to the Court's Show Cause Order and failure to pay the initial partial filing fee. The Clerk of Court is DIRECTED to close the case. Signed by Judge Michael J. Reagan on 03/16/2014. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUAN DIAZ,
Plaintiff,
vs.
R. CLARK, ARNEZ and DAVIES,
Defendants.

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Case No. 12-CV-1168–MJR- DGW

ORDER ADOPTING REPORT AND RECOMMENDATION
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 61), recommending that the case be
dismissed without prejudice for Plaintiff’s failure to comply with 28 U.S.C. § 1915(b)(1).
The Report and Recommendation was entered on January 27, 2014. Plaintiff filed his
objection to the Report and Recommendation on February 13, 2014 (Doc. 63).
Plaintiff Juan Diaz, currently an inmate at Pontiac Correctional Center, filed this
pro se civil rights action pursuant to 42 U.S.C. §1983 against the above mentioned
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defendants, alleging cruel and unusual punishment under the Eighth Amendment. On
November 8, 2012, (the same day the Complaint was filed in the Central District of
Illinois), District Judge James E. Shadid issued an Order granting Plaintiff’s Petition to
Proceed In Forma Pauperis and directed Plaintiff to pay an initial partial filing fee of $3.33.
During this time, Plaintiff had a balance of $240.01 (with a restricted amount of $7.55) in
his Trust Fund Account. Plaintiff never objected to the imposition of the initial filing
fee.
On November 5, 2013, the Court informed Plaintiff that his initial filing fee had
not been paid (Doc. 49). Magistrate Judge Wilkerson then directed Plaintiff to either
pay the initial filing fee or show cause-by January 6, 2014-as to why the filing fee had not
been or could not be paid (Doc. 49). Plaintiff failed to respond to Magistrate Judge
Wilkerson’s show cause order.
On January 27, 2014, Magistrate Judge Wilkerson issued a Report and
Recommendation that the Court should dismiss the case for failure to prosecute because
Plaintiff failed to comply with 28 U.S.C. § 1915(b)(1) and the Orders of this Court.
Plaintiff filed an objection to this Report and Recommendation on February 13, 2014
(Doc. 63).
Where timely objections are filed, this Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. ' 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill.

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1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court Amay
accept, reject or modify the magistrate judge=s recommended decision.@ Harper, 824 F.
Supp. at 788. In making this determination, the Court must look at all of the evidence
contained in the record and Agive >fresh consideration to those issues to which specific
objections have been made.=@

Id., quoting 12 Charles Alan Wright et al., Federal

Practice and Procedure ' 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).
In Plaintiff’s objection to the Report and Recommendation, he plainly states that
he is “indigent and [has] no money in any account/trust fund.” (Doc. 63). This is
insufficient. At the time that Plaintiff was ordered to pay the initial partial filing fee of
$3.33, he clearly had the ability to pay, yet he never objected to the imposition of this fee.
In November of 2013, after Plaintiff was again ordered to pay the fee, he failed to pay the
fee and he did not object to the imposition of this fee. When the Court issued its Show
Cause Order, Plaintiff was warned that the failure to pay the initial filing fee or show
cause by the deadline would result in a Report and Recommendation that the matter be
dismissed. Plaintiff once again took no action. In Plaintiff’s objection to the Report
and Recommendation, he merely states that he is indigent and has no money, yet he
offers nothing in support of his assertion. Plaintiff has not provided an explanation for
his failure to respond to the Court’s Show Cause Order. Further, Plaintiff has never
explained why he did not pay the fee up front when he clearly had the ability to pay.
See Miller v. Hardy, 497 Fed.Appx. 618, 620 (7th Cir. 2012) (“The relevant inquiry is the

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state of the inmate’s finances at the time of filing.”). It is Plaintiff’s obligation to pay
the fee, and he has not satisfied that obligation, despite being warned of the
consequences.
For these reasons, the Court ADOPTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 61) and DISMISSES the case for Plaintiff’s failure to respond to
the Court’s Show Cause Order and failure to pay the initial partial filing fee.
IT IS SO ORDERED.
DATED: March 16, 2014

s/Michael J. Reagan______________
MICHAEL J. REAGAN
United States District Judge

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