Hardy v. Townsend et al

Filing 4

REPORT AND RECOMMENDATION re 1 Complaint, filed by Allan David Hardy be dismissed without prejudice. Objections to R&R due by 7/28/2009. Signed by Magistrate Judge Arthur J. Boylan on 7/14/09. (VEM)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ALLAN DAVID HARDY, Plaintiff, v. RONDELL TOWNSEND, and T. HOLT, Defendants. Plaintiff, a prisoner of the State of Minnesota, commenced this action by filing a complaint seeking relief under 42 U.S.C. 1983. (Docket No. 1.) He did not pay any filing fee when he filed this action, but instead applied for leave to proceed in forma pauperis, ("IFP"). (Docket No. 2.) When the matter came before this Court for initial review, the Court noted that Plaintiff is barred from proceeding IFP under the "three strikes rule" set forth at 28 U.S.C. 1915(g).1 Therefore, by order dated June 15, 2009, (Docket No. 3), the Court directed Plaintiff to pay the full $350 filing fee prescribed by 28 U.S.C. 1914(a). That order expressly advised Plaintiff that if he did not pay the full filing fee by July 8, 2009, the Court REPORT AND RECOMMENDATION Civil File No. 09-1339 (JMR/AJB) Section 1915(g) was enacted as part of the Prison Litigation Reform Act of 1995 ("PLRA"). It provides that: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [i.e., the IFP statute -- 28 U.S.C. 1915] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 1 would recommend that this action be summarily dismissed. The deadline for paying the full filing fee has now passed, and Plaintiff has not paid the fee, nor has he offered any excuse or explanation for his failure to comply with the Court's prior order. In fact, Plaintiff has not communicated with the Court at all since he commenced this action. Therefore, the Court will now recommend, in accordance with the prior order, that this action be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). See Henderson v. Renaissance Grand Hotel, 267 Fed.Appx. 496, 497 (8th Cir. 2008) (unpublished opinion) ("[a] district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order"); see also Link v. Wabash Railroad Co., 370 U.S. 626, 63031 (1962) (recognizing that a federal court has the inherent authority to "manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases"). Based upon the above, and upon all the records and proceedings herein, IT IS HEREBY RECOMMENDED that: This action be DISMISSED WITHOUT PREJUDICE. Dated: July 13, 2009 s/ Arthur J. Boylan ARTHUR J. BOYLAN United States Magistrate Judge Pursuant to Local Rule 72.2(b), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection. This Report and Recommendation does not constitute an order or judgment from the District Court and it is therefore not directly appealable to the Circuit Court of Appeals. Written objections must be filed with the Court before July 28, 2009. 2

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