Thrasher v. State of Missouri Department of Corrections et al

Filing 8

ORDER adopting Report and Recommendations re 6 ; denying 1 motion for TRO; plaintiff's claims are dismissed for failure to state a claim for which relief can be granted. Signed by District Judge Nanette K. Laughrey on 1/16/09. (Bax, Laura)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID THRASHER, No. 44415, Plaintiff, v. STATE OF MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ORDER No. 08-4223-CV-C-NKL On October 28, 2008, United States Magistrate Judge William A. Knox recommended dismissing plaintiff' s claims. The parties were advised they could file written exceptions to the r ecommendation, pursuant to 28 U.S.C. 636(b)(1)(C). The court has conducted a de novo review of the record, including the exceptions filed by plaintiff on November 14, 2008. The issues raised in plaintiff's exceptions were adequately addr essed in the report and recommendation. The court is persuaded 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 Cir cuit 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 October 28, 2008, 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 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 1 r eview of plaintiff's financial documentation indicates he is capable of paying an initial partial filing fee of $1.90. IT IS, THEREFORE, ORDERED that plaintiff's initial partial filing fee is calculated at $1. 90 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 accor d 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 October 28, 2008, is adopted. [6] It is further ORDERED that plaintiff's claims are dismissed, pursuant to 28 U.S.C. 1915A, for failure to state a claim for which relief can be granted. It is further ORDERED that plaintiff's request for a temporary restraining order is denied. [1] / s/ NANETTE K. LAUGHREY United States District Judge Dated: January 26, 2009 Jeffer son City, Missouri 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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