Eason v. Hornbuckle et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS and OVERRULING OBJECTIONS re 26 Report and Recommendations ORDERING that action be DISMISSED without prejudice for failure to prosecute or to obey an order of the Court and FURTHER ORDERED all pending motions are DENIED. Signed by Judge Robert W. Schroeder, III on 9/24/2015. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RUSSELL WAYNE EASON

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v.

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INMATE HORNBUCKLE, ET AL.

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CIVIL ACTION NO. 5:14cv129

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Russell Eason, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered the case be
referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges.
In November of 2014, Plaintiff was ordered to pay an initial partial filing fee of $16.45,
pursuant to 28 U.S.C. §1915(b). He sought reconsideration of this order, which was denied, and an
extension of time to comply, which was granted until July 2, 2015. When Plaintiff did not comply,
the Magistrate Judge issued a Report recommending the lawsuit be dismissed without prejudice for
failure to prosecute or to obey an order of the Court.
In his first set of objections to the Report, Plaintiff contends he has no funds to pay the court
costs. He states his brother, Darrell Eason, is retired and draws disability and sends him money
when he can, and this is the only time Plaintiff receives any money.
Eason attaches a TDCJ inmate trust account data sheet to his objections. This data sheet
shows that Eason received deposits of $110.00 in January of 2015, $60.00 in March, $60.00 in April,
$60.00 in May, and $60.00 in June of 2015. He wholly fails to explain why he could not have paid
a $16.45 filing fee in any one of these months.
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In his second set of objections, Eason argues he is indigent. He again states his brother
Darrell Eason tries to help him because he, Plaintiff, is a chronic diabetic and heart patient, but
Darrell already pays Plaintiff’s court costs and “attorney fee sanction” in a state court case. He states
the money received from his brother, if not lost in the mail, leaves him about $25 to $30 a month
with which to purchase hygiene supplies, a diabetic supplement, and “very limited commissary
spending.” Plaintiff attaches a commissary receipt dated May 29, 2015; this receipt shows Plaintiff
received $60.00 in deposits (under which he hand-wrote “I get half”), of which $24.00 was deducted
for court costs and he spent $25.33 at the commissary.
Plaintiff has failed to show good cause why he did not pay the filing fee between January and
June of 2015, a period of time in which he received a total of $350.00 in deposits and thus had more
than enough to pay a $16.45 filing fee. The fact he has other court fees to pay or he wanted to make
purchases at the commissary are not adequate grounds to excuse payment of a statutory filing fee.
See Atchison v. Collins, 288 F.3d 177, 180 (5th Cir. 2002) (prisoners must pay 20 percent of their
monthly income for each case filed). The Seventh Circuit has aptly stated as follows:
Litigation is not a free good, and its costs are not limited to those who initiate it.
They are borne not only by the plaintiff but by the defendant, by the taxpayer, and by
parties to other lawsuits in the same court, whose cases may be delayed or may
receive less attention from the judge than if the case load were lighter.
Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 259-60 (7th Cir. 1987).
The court went on to state that if an inmate does not believe his litigation is worthy of any costs
involved which he may be able to assume, he has demonstrated an implied evaluation of the lawsuit
which this Court is entitled to honor. Id.
Plaintiff’s inmate trust account data sheet shows he has received ample funds in which to pay
the initial partial filing fee in the months since he was ordered to pay this fee. He has shown no valid
reason for his failure to comply with the Magistrate Judge’s order and has failed to prosecute his
case. See also Dudley v. Pratt, civil action no. 6:07cv320, 2007 U.S. Dist. LEXIS 88946 (E.D.Tex.,
December 4, 2007) (dismissing lawsuit for failure to prosecute where inmate who received $20.00
per month from his mother claimed he could not pay an initial partial filing fee of $4.01).
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The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
objections are without merit. It is accordingly
.
ORDERED that the Plaintiff’s objections and supplemental objections are overruled and the
Report of the Magistrate Judge (docket no. 26) is ADOPTED as the opinion of the District Court.
It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice
for failure to prosecute or to obey an order of the Court. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 24th day of September, 2015.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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