Darby v. Schmalenberger et al

Filing 13

ORDER by Judge Daniel L. Hovland ADOPTING 10 REPORT AND RECOMMENDATIONS in part; VACATING 4 Order granting Darby's 1 Motion for Leave to Proceed IFP; and DISMISSING the case without prejudice.(QF) Distributed on 11/9/2012 (rs).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Vonnie Darin Darby and
All Those Similarly Situated,

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Plaintiffs,
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ORDER ADOPTING REPORT
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AND RECOMMENDATION
vs.
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Case No. 1:12-cv-033
Robyn Schmalenberger, Warden, et al.,
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Defendants.
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______________________________________________________________________________
Before the Court is Magistrate Judge Charles S. Miller Jr.’s “Order to Show Cause and
Report and Recommendation” filed on May 7, 2012. See Docket No. 10. The Order to Show Cause
and Report and Recommendation provides in relevant part as follows:
Based on the foregoing, it is hereby ORDERED that Darby shall have
fourteen (14) days to show cause in writing why this court’s prior order granting him
leave to proceed in forma pauperis should not be vacated as improvidently granted
and why leave to proceed in forma pauperis should not be denied based on his
having accumulated three or more strikes pursuant to the “three strikes” provisions
in 28 U.S.C. § 1915(g). Defendant is advised that failure to show good cause may
result in the court taking the recommended action set forth below.
In addition, it is hereby RECOMMENDED as follows:
1.

If Darby fails to show good cause for why the court’s prior order granting
leave to proceed in forma pauperis should not be granted, the court orders as
follows:
a.

b.

2.

The court’s order dated April 2, 2012, granting Darby leave to
proceed in forma pauperis (Doc. No. 4) be vacated and leave to
proceed in forma pauperis be denied.
Darby be given an additional thirty days to file a paid complaint or
the complaint be dismissed without prejudice.

In the alternative, this case be dismissed without prejudice for failure to state
a claim.

See Docket No. 10, p. 18. Darby filed a “Response to Order to Show Cause and Report &
Recommendation” on May 21, 2012. See Docket No. 12.
The Court has carefully reviewed Judge Miller’s Order to Show Cause and Report and
Recommendation, the relevant case law, and the entire record, and finds the Report and Recommendation
to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 10) in
part and ORDERS as follows:
1)

The court’s order dated April 2, 2012, granting Darby leave to proceed in
forma pauperis (Docket No. 4) be VACATED and leave to proceed in forma
pauperis be DENIED; and

2)

That this case is DISMISSED without prejudice for failure to state a claim.

IT IS SO ORDERED.
Dated this 9th day of November, 2012.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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