Randolph v. Dormire et al

Filing 24

REPORT AND RECOMMENDATION that if the remainder of the initial filing fee is not paid by 1/12/2009, 1 Complaint filed by Ronnie Randolph be dismissed, pursuant to Fed. R. Civ. P. 41(b), for failure to comply with court orders; that claims against Olan Salzer be dismissed, pursuant to Rule 4(m). Objections to R&R due by 12/31/2008. Signed by Magistrate Judge William A. Knox on 12/11/2008. (skb)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION RONNIE RANDOLPH, Register No. 48868, Plaintiff, v. DAVE DORMIRE, et al., Defendants. ) ) ) ) ) ) ) ) ) Consolidated Cases No. 08-4140-CV-C-NKL No. 08-4141-CV-C-NKL No. 08-4142-CV-C-NKL No. 08-4143-CV-C-NKL REPORT, RECOMMENDATION AND ORDER Plaintiff, an inmate confined in a Missouri penal institution, commenced this action under the Civil Rights Act of 1871, 42 U.S.C. 1983, and the jurisdictional statute, 28 U. S. C. 1343. 1 A review of the record indicates defendant Olan Salzer has not been served with pr ocess. Rule 4(m), Federal Rules of Civil Procedure, provides: If a defendant is not served within 120 days after the complaint is filed, the cour t -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the cour t must extend the time for service for an appropriate period. Plaintiff was granted leave to proceed in forma pauperis on July 22, 2008. Here, it has been mor e than 120 days since plaintiff's complaint was filed naming Olan Salzer as a defendant. Plaintiff has not provided an address for service of process. Moreover, plaintiff has not r equested an extension of time or shown good cause why the time for service should be extended. On August 26, 2008, plaintiff paid $10.00 toward his initial filing fee assessed in the amount of $93.65. On September 25, 2008, plaintiff filed a motion requesting leave to pay the 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. 1 r emainder of his initial filing fee in $2.00 monthly installments. Plaintiff was assessed the initial filing fee in accordance with the calculation required by 28 U.S.C. 1915. 2 Plaintiff has failed to show why such assessment is incorrect. At the time plaintiff filed this case, his aver age inmate account balance was $433.77. This court finds no basis to grant plaintiff's motion. IT IS, THEREFORE, ORDERED that plaintiff's motion for leave to pay the remainder of his initial filing fee in $2.00 monthly installments is denied. [14] It is further ORDERED that within that within thirty days, plaintiff pay the remainder of his initial payment in the amount of $83.65. It is further RECOMMENDED that if the remainder of the initial filing fee is not paid within thirty days of the date of this order, plaintiff's claims be dismissed, pursuant to Federal Rule of Civil Pr ocedur e 41(b), for failure to comply with court orders. It is further RECOMMENDED that plaintiff' s claims against defendant Olan Salzer be dismissed, pur suant to Fed. R. Civ. P. 4(m). 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 The initial payment is assessed at "20 percent of the greater of (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the pr isoner 's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal." The installment payments will be assessed at "20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid." 28 U.S.C. 1915. If plaintiff has not signed an authorization for release of inmate account funds, he will need to do so promptly. 2 2 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 11th day of December, 2008, at Jefferson City, Missouri. / s/ William A. Knox WILLIAM A. KNOX United States Magistrate Judge 3

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