Kelley v. Fisher

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION for 10 Report and Recommendation, 2 Application to Proceed in District Court without Prepaying Fees or Costs filed by Thomas Kelley. 1. Plaintiff Thomas Kelley's objections (Doc. No. 11 ) to Magi strate Judge Jeanne J. Graham's March 20, 2013 Report and Recommendation are OVERRULED. 2. Magistrate Judge Jeanne J. Graham's March 20, 2013 Report and Recommendation (Doc. No. 10 ) is ADOPTED. 3. Plaintiff's application to proceed i n forma pauperis (Doc. No. 2 ) is DENIED. 4. This action is DISMISSED WITHOUT PREJUDICE. 5. The Clerk of Court is directed to return the $5 filing fee to Plaintiff.(Written Opinion). Signed by Judge Donovan W. Frank on 5/2/2013. (BJS) cc: Thomas Kelley. Modified on 5/3/2013 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Thomas Kelley,

Civil No. 13-215 (DWF/JJG)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Scott Fisher,
Defendant.

This matter is before the Court upon pro se Plaintiff Thomas Kelley’s objections
(Doc. No. 11) to Magistrate Judge Jeanne J. Graham’s March 20, 2013 Report and
Recommendation (Doc. No. 10) insofar as it recommends that: (1) Plaintiff’s application
to proceed in forma pauperis be denied; and (2) this action be dismissed without
prejudice.
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of the parties, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled matter is clearly and
precisely set forth in the Report and Recommendation and is incorporated by reference
for purposes of Plaintiff’s objections.
Having carefully reviewed the record, the Court concludes that Plaintiff’s
objections offer no basis for departure from the Report and Recommendation. While
Plaintiff has submitted a $5 partial filing fee, he has otherwise failed to comply with

Magistrate Judge Graham’s prior order, requiring that he submit an amended IFP
application. (See Doc. No. 5.) Plaintiff’s complaint is thus properly dismissed without
prejudice. Should Plaintiff wish to file a separate petition for habeas relief under
28 U.S.C. § 2241, he must do so comprehensibly on the form prescribed for use in this
District. (See Doc. No. 10 at 1-2 n.1.)
Based upon the de novo review of the record and all of the arguments and
submissions of the parties, and the Court being otherwise duly advised in the premises,
the Court hereby enters the following:
ORDER
1.

Plaintiff Thomas Kelley’s objections (Doc. No. [11]) to Magistrate Judge

Jeanne J. Graham’s March 20, 2013 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Jeanne J. Graham’s March 20, 2013 Report and

Recommendation (Doc. No. [10]) is ADOPTED.
3.

Plaintiff’s application to proceed in forma pauperis (Doc. No. [2]) is

DENIED.
4.

This action is DISMISSED WITHOUT PREJUDICE.

5.

The Clerk of Court is directed to return the $5 filing fee to Plaintiff.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 2, 2013

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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