Winn v. Lakeview Village

Filing 5

MEMORANDUM AND ORDER denying 3 Motion for Leave to Proceed in forma pauperis ; accepting, adopting and affirming 4 Report and Recommendations. The court orders plaintiff to pay the $400 filing fee in three equal monthly installments. The court cautions plaintiff that failure to pay the first installment of the filing fee within 30 days of the date of this Order will result in the dismissal of this action without prejudice. Signed by District Judge Daniel D. Crabtree on 4/20/2018. Mailed to pro se party Darlene Winn by regular mail and certified mail, certified tracking number 70161970000113655729. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARLENE D. WINN,
Plaintiff,
v.
Case No. 18-2131-DDC-JPO
LAKEVIEW VILLAGE,
Defendant.
________________________________________
MEMORANDUM AND ORDER
On March 27, 2018, Judge O’Hara issued a Report and Recommendation, recommending
that the district court: (1) deny plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc.
3); (2) permit plaintiff to pay the requisite filing fee in three equal monthly installments; and (3)
caution plaintiff that if she does not pay the filing fee, the court will dismiss her case without
prejudice. Doc. 4 at 3. As Judge O’Hara’s Report and Recommendation explained, plaintiff had
the right to file objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(a), within 14 days after service. Doc. 4 at 3. Judge O’Hara
also advised plaintiff that failing to make a timely objection to the Report and Recommendation
would waive any right to appellate review of the proposed findings of fact, conclusions of law,
and recommended disposition. See id. (explaining that “[i]f plaintiff does not timely file her
objections, no court will allow appellate review”). The Clerk sent a copy of the Report and
Recommendation to plaintiff by regular mail. See Docket Entry for Doc. 4 (“Mailed to pro se
party Darlene D. Winn by regular mail.”).
Service of the Report and Recommendation was accomplished by “mailing it to
[plaintiff’s] last known address—in which event service [was] complete upon mailing.” Fed. R.

Civ. P. 5(b)(2)(C); ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct.
16, 2014). “Mailing” occurred on March 27, 2018, when the Clerk mailed the Report and
Recommendation to plaintiff. See Doc. 4. The time for plaintiff to file objections to the Report
and Recommendation thus expired April 10, 2018.
To date, plaintiff has filed no objection to Judge O’Hara’s Report and Recommendation,
nor has she sought an extension of time to file an objection. Because plaintiff has filed no
objection to the Report and Recommendation within the time prescribed, and she has sought no
extension of time to file an objection, the court can accept, adopt, and affirm the Report and
Recommendation in its entirety. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(“In the absence of timely objection, the district court may review a magistrate’s report under
any standard it deems appropriate.”).
The court also has reviewed plaintiff’s Motion for Leave to Proceed In Forma Pauperis
and her accompanying Affidavit of Financial Status (Docs. 3, 3-1). And the court agrees with
Judge O’Hara’s recommendation. Plaintiff’s filing demonstrates that she has sufficient financial
resources to pay the filing fee. The court thus adopts Judge O’Hara’s recommendation that the
district court deny plaintiff’s Motion for Leave to Proceed In Forma Pauperis and orders plaintiff
to pay the $400 filing fee in three equal monthly installments. The court cautions plaintiff:
Failing to pay the filing fee may result in dismissal of her action without prejudice. See, e.g.,
Cosby v. Meadors, 351 F.3d 1324, 1331–33 (10th Cir. 2003) (affirming a district court’s order
dismissing a plaintiff’s complaint for failing to pay the filing fee).
IT IS THEREFORE ORDERED that, after reviewing the file de novo, the Report and
Recommendation issued by United States Magistrate Judge James P. O’Hara on March 27, 2018
(Doc. 4) is ACCEPTED, ADOPTED, and AFFIRMED.

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IT IS FURTHER ORDERED THAT plaintiff’s Motion for Leave to Proceed in Forma
Pauperis (Doc. 3) is DENIED. The court orders plaintiff to pay the $400 filing fee in three equal
monthly installments. The court cautions plaintiff that failure to pay the first installment of
the filing fee within 30 days of the date of this Order will result in the dismissal of this
action without prejudice.
IT IS SO ORDERED.
Dated this 20th day of April, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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