Randolph v. Dormire et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS 6 ; directing prisoner payment fee; dismissing plaintiff's claims. Signed by District Judge Scott O. Wright on 1-9-09. (Morse, Judy)

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.

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No. 08-4144-CV-C-SOW

ORDER On July 18, 2008, United States Magistrate Judge William A. Knox recommended dismissing plaintiff's claims. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C). No exceptions have been filed. To the extent plaintiff's August 18, 2008, letter to the court could be treated as objections, it fails to change the fact that plaintiff's claims relate to property, which must be brought in state court. Plaintiff's broad statements regarding matters outside the report and recommendation and his complaint will not be addressed. Plaintiff may file a new complaint in a separate case if he believes these claims warrant such action. Plaintiff is advised he is responsible for the filing fee in any new case he files. A review of the record convinces the court that the recommendation of the Magistrate Judge is correct and should be adopted. Inmates who file an appeal with the United States Court of Appeals for the Eighth Circuit are required to pay the full $455.00 appellate filing fee, regardless of the outcome of the appeal. Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). The filing of a notice of appeal is considered a consent by the inmate to allow prison officials to deduct an initial partial appellate filing fee and later installments from the prisoner's account. On July 18, 2008, the court granted plaintiff leave to proceed in forma pauperis on a provisional basis, and by doing so, determined to forego the collection of the $350.00 filing fee established for civil cases. Plaintiff was warned that the court would collect the entire $350.00

filing fee if he filed another pleading in this case. See 28 U.S.C. § 1915(b)(2).1 A review of plaintiff's financial documentation indicates he is capable of paying an initial partial filing fee of $86.76. IT IS, THEREFORE, ORDERED that plaintiff's initial partial filing fee is calculated at $86.76 and the Missouri Department of Corrections is directed to deduct from plaintiff's inmate account, and forward to the court, the initial partial filing fee and installment payments, in accord with the provisions of 28 U.S.C. § 1915, until the $350.00 filing fee is paid in full. It is further ORDERED that the Report and Recommendation of July 18, 2008, is adopted. [6] It is further ORDERED that plaintiff's claims are dismissed, pursuant to the provisions of 28 U.S.C. § 1915A, for failure to state a claim for which relief can be granted.

/s/Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge Dated: January 9, 2009

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 prisoner'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. 2

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