Pierce v. Foxworth et al

Filing 17

ORDER ADOPTING 10 Report and Recommendations. The complaint is DISMISSED without prejudice for want of prosecution and failure to obey an order. All motions not previously ruled on are hereby DENIED. Signed by Judge Michael H. Schneider on 11/19/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

ANTHONY PIERCE, #1813502

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VS.

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TODD A. FOXWORTH, ET AL.

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CIVIL ACTION NO. 6:13cv595

ORDER OF DISMISSAL
Plaintiff Anthony Pierce, a prisoner confined in the Texas prison system, proceeding pro se
and in forma pauperis, filed this lawsuit pursuant to 42 U.S.C. § 1983. The lawsuit was referred to
United States Magistrate Judge K. Nicole Mitchell, who concluded that the lawsuit should be
dismissed because Pierce failed to comply with an order to pay an initial partial filing fee of $45.63.
Pierce filed objections to the Report and Recommendation. He asserted that he “was unable
to pay the like of $400.” In an order (docket entry #13), Magistrate Judge Mitchell noted that the
initial partial filing fee was for $45.63, as opposed to $400. It was further noted that his average
balance for the previous six months was $228.16 and his average monthly deposits over that same
period of time was $94.17. He had received deposits of at least $50 every month over the previous
six months. Consequently, he had the money to pay the initial partial filing fee. The deadline for
him to pay the initial partial filing fee was extended to November 15, 2013. Pierce was placed on
notice that the Report and Recommendation would be forwarded for final consideration if he did not
timely pay the fee. The Court has received an acknowledgment from him indicating that he received
the order on October 18, 2013, but the payment has not been received and Pierce has not offered any

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explanation for failing to pay the fee. Consequently, the case should be dismissed for want of
prosecution and failure to obey an order.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Pierce to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and the objections raised by
Pierce are without merit. Therefore the Court hereby adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the Report and Recommendation (docket entry #10) is ADOPTED. It is
.
further
ORDERED that the complaint is DISMISSED without prejudice for want of prosecution
and failure to obey an order. Fed. R. Civ. P. 41(b); Rule 41, Local Rules for the Eastern District of
Texas. It is finally
ORDERED that all motions not previously ruled on are hereby DENIED.
It is SO ORDERED.
SIGNED this 19th day of November, 2013.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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