Dopp v. Jones et al

Filing 19

ORDER adopting Report and Recommendations re 17 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 1/30/2015. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RICHARD LYNN DOPP,
Plaintiff,
v.
JUSTIN JONES, et al.,
Defendants.

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Case No. CIV-14-961-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Shon T. Erwin on December 24, 2014 [Doc. No. 17].
Judge Erwin recommends that this action be dismissed without prejudice to refiling due to
Plaintiff’s failure to pay the initial partial filing fee of $4.23 required by the Court’s Order
of November 7, 2014. See Order for Payment of Inmate Filing Fee [Doc. No. 15]. Plaintiff
was ordered to make the required payment or to show cause in writing for his failure to pay
by December 1, 2014. Judge Erwin also recommends that Plaintiff’s Motion to Alter or
Amend as to IFP Filing Fee [Doc. No. 16] be denied.
Plaintiff, who appears pro se, has filed a timely objection to the Report. Thus, the
Court must make a de novo determination of portions of the Report to which a specific
objection is made, and may accept, modify, or reject the recommended decision. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

Plaintiff contends that Judge Erwin failed to fully consider his Motion and supporting
attachments, by which Plaintiff sought to show that prison officials had obstructed his efforts
to pay the $4.23 filing fee and requested that the Court either order prison officials to
transmit the filing fee from his “gang pay” (as they had previously done for another case) or
relieve Plaintiff of the obligation to pay the fee. What the Motion shows, however, is that
Plaintiff began requesting payment of the $4.23 fee as soon as the Court conditionally
granted him leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, provided he
filed an amended complaint as directed by the Court. See Order of Oct. 10, 2014 [Doc.
No. 11], pp.8-9. The Amended Complaint was not filed of record until November 5, 2014,
and the Order for Payment of Inmate Filing Fee was issued November 7, 2014. The papers
submitted with Plaintiff’s Motion show no effort to comply with the Order after November 7,
2014.1
With his Objection, Plaintiff submits additional papers showing he filed a request to
staff and a grievance regarding payment of the fee. The grievance concerned the prison
officials’ failure to process his prior request to pay the fee from his “gang pay” and the
alleged interference with his lawsuit. The grievance response was that an investigation of
the matter showed the need for a court order directing the payment be made. See Objection,
attach. 3 [Doc. No. 18-3]. Plaintiff stands on his position that he did submit a court order.

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Notably, the reason why his October 22 request was not processed was due to the lack of a court
order “showing that [he was] required to send this filing fee.” See Motion, attach. 3 [Doc. No. 16-3]. Plaintiff
then submitted another request on November 5 saying that he had already submitted a court order, he was
getting “the run around,” and stating: “I wash my hands of this.” Id. attach. 4 [Doc. No. 16-4].

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However, there is no evidence that he submitted the Court’s November 7 Order directing that
the payment be made because it does not appear that he made any request for disbursement
of funds since the November 7 Order was issued.
Accordingly, the Court finds that Judge Erwin is correct. Almost two months after
the initial partial payment of $4.23 was due, Plaintiff still has not paid the required fee, and
he has not shown good cause for his failure to pay. Plaintiff does not contend that he cannot
pay the fee; he apparently prefers to complain about the prison’s rules regarding fee
disbursements rather than to comply with them. The Court cannot agree with Plaintiff that
he bears no fault in the nonpayment of the fee, as he now contends. Further, Plaintiff was
given ample time and opportunity to make the required payment, and he was expressly
advised that nonpayment could result in dismissal of his case. Under these circumstances,
the Tenth Circuit has held that it is within a district court’s discretion to dismiss the action.
Kennedy v. Reid, 208 Fed. App’x 678, 679 (10th Cir. 2006); see also Cosby v. Meadors, 351
F.3d 1324, 1331-32 (10th Cir. 2003). Dismissal is particularly appropriate in this case
because Plaintiff is a frequent litigant in this and other federal courts. He is familiar with the
Court’s procedural rules and the prison’s requirements regarding payment requests.2
Plaintiff’s failure to comply with them does not warrant relief from the payment requirement
of § 1915(b)(1) or the Court’s November 7 Order.

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Most recently, on May 29, 2014, Plaintiff successfully paid the $5.00 filing fee for a habeas corpus
petition. See Dopp v. Patton, Case No. CIV-14-453-D (W.D. Okla. May 29, 2014).

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IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 17]
is ADOPTED. This action is dismissed without prejudice to refiling due to Plaintiff’s
nonpayment of the required filing fee. A separate judgment of dismissal shall be entered.
IT IS SO ORDERED this 30th day of January, 2015.

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