Weston et al v. Crawford et al

Filing 35

REPORT AND RECOMMENDATIONS that 32 MOTION to dismiss case filed by Rodney Henderson be granted; 1 Complaint filed by Rodney Henderson, Danny Louie, Gregory Weston be dismissed, without prejudice. Objections to R&R due by 11/17/2008. Signed by Magistrate Judge William A. Knox on 10/28/2008. (skb)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

RODNEY HENDERSON, Register No. 320781, ) ) Plaintiff, ) ) v. ) ) LARRY CRAWFORD, et al., ) ) Defendants. )

No. 07-4244-CV-C-NKL

REPORT, RECOMMENDATION AND ORDER Plaintiffs Gregory Weston1, Danny Louie1 and Rodney Henderson, while confined in a Missour i penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jurisdictional statute, 28 U.S.C. § 1343. 2 On September 11, 2008, plaintiff Henderson filed a motion to dismiss his complaint and requested discontinuance of payments from his inmate account being applied toward the r emaining balance of the court's filing fee. There being no opposition filed by defendants, plaintiff's motion to dismiss his claims should be granted. However, plaintiff is advised that the court is not authorized under the Pr ison Litigation Reform Act (PLRA) to direct prison officials not to collect the filing fee for the instant complaint. Williams v. Harmon, 2008 WL 4331125 (8th Cir. Sept. 24, 2008) (unpublished) (citing In Re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (under the PLRA, pr isoner s are responsible for filing fees the moment civil litigation is filed).

The claims of plaintiff Weston were dismissed on October 8, 2008, and plaintiff Louie's claims were dismissed on April 18, 2008. This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. § 636, and L.R. 72.1.
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IT IS, THEREFORE, ORDERED that plaintiff Henderson's motion for discontinuance of payments from his inmate account being applied toward the remaining balance of the court's filing fee in this case is denied. [32] It is further ORDERED that plaintiffs' April 15, 2008 motion to amend is denied as moot. [18] It is further RECOMMENDED that plaintiff Henderson's motion to dismiss be granted and plaintiff's claims be dismissed, without prejudice. [32] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). Dated this 28th day of October, 2008, at Jefferson City, Missouri.

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William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

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