Mount v. McLeod County et al
Filing
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ORDER ACCEPTING REPORT AND RECOMMENDATION 10 (Written Opinion). This action is DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Mount's Application to Proceed in forma pauperis 2 is denied as moot. LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Nancy E. Brasel on 3/6/2019. (KMW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JEREMY D. MOUNT,
Plaintiff,
v.
MCLEOD COUNTY; JUDGE MARK
VANDELIST, individually and in his
official capacity; and AMBER R.
DONLEY, individually and in her official
capacity,
Defendants.
Case No. 18‐CV‐960 (NEB/LIB)
ORDER ON REPORT AND
RECOMMENDATION
Pro se Plaintiff Jeremy Mount brought this action in April 2018 while incarcerated.
[ECF No. 1.] With the complaint, Mount submitted an Application to Proceed in forma
pauperis. [ECF No. 2.] On July 10, 2018 United States Magistrate Judge Leo I. Brisbois
ordered Mount to pay an initial partial filing fee of $259.44. [ECF No. 5.] Mount sought a
90‐day extension to pay the fee [ECF No. 7] and Judge Brisbois granted him a 45‐day
extension. [ECF No. 8.] For approximately six months, Mount did not pay the fee and did
not contact the Court. Judge Brisbois then filed a Report and Recommendation on
February 5, 2019, recommending this case be dismissed without prejudice for failure to
prosecute under Federal Rule of Civil Procedure 41(b). [ECF No. 10 (“R&R”).] Mount
objected to the R&R, claiming his monthly income had decreased and that paying the fee
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“would mean [he] could not spend money on calling his children, sending letters or
buying basic supplies for human living needs.” [ECF No. 11 at 1.]
If a party objects to a magistrate judge’s report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
Prisoners bringing civil actions must pay the initial filing fee and the court “shall assess,
and when funds exist, collect, as a partial payment of any court fees required by law, an
initial partial filing fee of 20 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 6‐month period immediately preceding the filing of the complaint.” 28 U.S.C.
§ 1915(b)(1). But “[i]n no event shall a prisoner be prohibited from bringing a civil action
. . . for the reason that the prisoner has no assets and no means by which to pay the initial
partial filing fee.” § 1915(b)(4). Mount’s IFP Application indicated that in the 6‐month
period preceding the application, the average monthly deposit in his trust fund prison
account was $1,297.20 and the average monthly balance was $455.35. Twenty percent of
the larger amount is $259.44—meaning Judge Brisbois correctly assessed the initial filing
fee under § 1915(b) in this case.
That Mount’s income has decreased recently does not change that inquiry, because
the statute requires the Court to consider the 6‐month period preceding the filing of the
complaint. Moreover, there is no evidence that Mount “has no assets and no means by
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which to pay the initial partial filing fee.” § 1915(b)(4). “Courts may . . . dismiss prisoner
actions for failure to pay the statutorily‐required initial partial filing fee.” Maddox v.
Swenson, No. CIV 10‐2847 ADM/AJB, 2010 WL 4683871, at *2 (D. Minn. Nov. 10, 2010).
Mount refrained from paying the initial partial filing fee for many months without
sufficient justification. Therefore, the Court dismisses this case without prejudice for
failure to prosecute.1
Even if the IFP application were granted, it is unlikely this case would survive screening
under 28 U.S.C. § 1915(a). As Judge Brisbois’s July 10 Order aptly notes, “[t]o the extent
that the action is an attempted appeal of a state‐court judgment, it is barred by the Rooker‐
Feldman doctrine, which prohibits federal district courts from sitting in appellate review
of state courts in non‐heabeas cases.” [ECF No. 5 at 3 n.2], see D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923). That
Order also correctly explained that Judge Vandelist is likely protected by absolute
immunity, Amber Donely is likely not considered a state actor under § 1983, and “there
is no basis on the complaint to conclude the defendant McLeod County itself, as an entity,
acted unlawfully.” (Id.)
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Based on the foregoing, and on all the files, records, and proceedings herein, the
Court OVERRULES Mound’s objections [ECF No. 11] and ACCEPTS the R&R [ECF No.
10]. IT IS HEREBY ORDERED THAT:
1. This action be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil
Procedure 41(b) for failure to prosecute; and
2. Mount’s Application to Proceed in forma pauperis [ECF No. 2] is denied as
moot.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: March 6, 2019
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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