Jamerson v. Missouri Department of Corrections et al

Filing 12

ORDER ADOPTING 10 REPORT AND RECOMMENDATION of May 6, 2009. It is ORDERED that the March 27, 2009 motion of the Missouri Department of Corrections 9 is granted and the claims against defendant Missouri Department of Corrections are dismissed, wi thout prejudice, for failure to state a claim. It is further ORDERED that plaintiff's claims against the John Doe defendants are dismissed, without prejudice, pursuant to the provisions of Fed. R. Civ. P. 41(b). Signed by District Judge Scott O. Wright on 6/12/2009. (Sandridge, Susan)

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

RICHARD JAMERSON, Register No. 1088183, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants.

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No. 08-4285-CV-C-SOW

ORDER On May 6, 2009, United States Magistrate Judge William A. Knox recommended dismissing plaintiff's claims against defendant Missouri Department of Corrections. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C). No exceptions to the recommendation have been filed. 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. Plaintiff was also directed to provide the court with the names of the John Doe defendants. 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). Plaintiff has failed to comply with the order to provide the names of the John Doe defendants; however, plaintiff's mail was returned, marked "offender no longer here." IT IS, THEREFORE, ORDERED that the Report and Recommendation of May 6, 2009, is adopted. [10] It is further ORDERED that the March 27, 2009 motion of the Missouri Department of Corrections is granted and the claims against defendant Missouri Department of Corrections are dismissed, without prejudice, for failure to state a claim. [9] It is further ORDERED that plaintiff's claims against the John Doe defendants are dismissed, without prejudice, pursuant to the provisions of Fed. R. Civ. P. 41(b).

/s/ Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge DATED: June 12, 2009

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