Hill v. Adkins et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 9 of Magistrate Judge Suzanne Mitchell...the court concludes the case should be dismissed for failure to pay the initial filing fee as required by the court's order. The report and recommendation is adopted and the case is dismissed without prejudice. Signed by Honorable Joe Heaton on 01/07/2021. (lam)

Case 5:20-cv-01007-HE Document 11 Filed 01/07/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EVERETT DEWAYNE HILL, JR.
Plaintiff,
vs.
FNU ADKINS, et al.,
Defendants.

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NO. CIV-20-1007-HE

ORDER
Plaintiff Everett Dewayne Hill, Jr., a pretrial detainee appearing pro se, filed this §
1983 action alleging his constitutional rights were violated during his detention. The case
was referred to Magistrate Judge Suzanne Mitchell for initial proceedings. Judge Mitchell
granted plaintiff’s request to proceed in forma pauperis and ordered him to make an initial
payment of $12.17 by November 10, 2020. After plaintiff failed to make the initial
payment, Judge Mitchell issued a Report and Recommendation recommending that the
case be dismissed without prejudice. Plaintiff has responded to the Report, which triggers
de novo review of the matters to which objection was made.
Plaintiff’s objection indicates that he was unable to pay the $12.17 by November
10, but that a family member apparently sought to make the payment at some point.
According to the objection, the court clerk’s office advised that the entire filing fee would
have to be paid within three months of the initial payment and, because he and/or the family
member was unwilling or unable to pay the fee in three months, the initial fee was not paid.
Plaintiff asks for clarification.

Case 5:20-cv-01007-HE Document 11 Filed 01/07/21 Page 2 of 2

The court declines to belabor the question of what was asked of the clerk, or what
the staff member said, or how the family member interpreted it.

The applicable

requirement and course of payment was clearly and correctly set out in Judge Mitchell’s
order. See 28 U.S.C. § 1915(b)(1). The plaintiff could have paid the initial fee and then
sought clarification of any question he might have, but he did not. Rather, the initial
payment of $12.17 remains unpaid and has been so for approximately two months since
the applicable deadline.
In these circumstances, the court concludes the case should be dismissed for failure
to pay the initial filing fee as required by the court’s order.

The Report and

Recommendation [Doc. #9] is ADOPTED and the case is DISMISSED without prejudice.
IT IS SO ORDERED.
Dated this 7th day of January, 2021.

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