Reed v. Cofield et al

Filing 16

REPORT AND RECOMMENDATION that 1 Complaint filed by Larry Reed be dismissed, pursuant to Fed. R. Civ. P. 41(b), for failure to comply with court orders. Objections to R&R due by 2/23/2009. Signed by Magistrate Judge William A. Knox on 2/2/2009. (skb)

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

LARRY REED, Register No. 519641, Plaintiff, v. J. COFIELD, et al., Defendants.

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No. 08-4257-CV-C-NKL

REPORT, RECOMMENDATION AND ORDER Plaintiff Larry Reed, an inmate confined in a Missouri penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jur isdictional statute, 28 U.S.C. § 1343. 1 On December 12, 2008, plaintiff was directed to make an initial payment of $7.14 towar d the filing fee. Plaintiff was advised that failure to comply with the court order could r esult in dismissal, pursuant to Fed. R. Civ. P. 41(b). As stated in M.S. v. Wermers, 557 F . 2d 170, 175 (8th Cir. 1977): A district court has power to dismiss an action for failure of the plaintiff to comply with "a court order." Fed. R. Civ. P. 41(b). Such action may be taken on the court' s own motion, Welsh v. Automatic Poultry Feeder Co., 439 F . 2d 95, 96 (8th Cir. 1971); see Stanley v. Continental Oil Co., 536 F.2d 914, 916-17 (10th Cir. 1976), and may be exercised under the court' s inherent power to control its docket, Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir . 1972); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-33 (1962), and to protect the integrity of its orders, Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975). See generally 15 A.L.R. Fed. 407 (1973). A review of the record indicates plaintiff has not paid the initial portion of the filing fee and plaintiff's claims should be dismissed.

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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Based on the foregoing, it is ORDERED that plaintiff's motion for appointment of counsel is denied, without pr ejudice. [13] It is further RECOMMENDED that plaintiff' s claims be dismissed for failure to comply with court or der s, pursuant to the provisions of Fed. R. Civ. P. 41(b). 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 2nd day of February, 2009, at Jefferson City, Missouri.

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William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

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