Dailey v. Polunsky Unit Warden et al

Filing 12

MEMORANDUM ORDER ADOPTING 8 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 7/10/13. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
BOBBY LYNN DAILEY

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v.

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POLUNSKY UNIT WARDEN, ET AL.

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CIVIL ACTION NO. 9:13cv44

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Bobby Dailey, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights in the Texas Department of
Criminal Justice, Correctional Institutions Division. This Court ordered that 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.
On April 23, 2013, Dailey was ordered to pay an initial partial filing fee of $1.66, pursuant
to 28 U.S.C. §1915(b). He was also ordered to amend his complaint to set out a short and plain
statement of his claim. Dailey has amended his complaint, but did not pay the initial partial filing
fee.
On May 29, 2013, the Magistrate Judge issued a Report recommending that the lawsuit be
dismissed without prejudice for failure to prosecute or to obey an order of the Court, based on
Dailey’s failure to pay the initial partial filing fee. Dailey filed objections to the Report on June 28,
2013, which objections were signed on June 4, 2013.
In his objections, Dailey says that he had surgery in Galveston on April 24, and stayed there
for a week. In a “declaration of inability to pay costs,” Dailey states that he is unable to pay the court
costs because he currently has $16.86 on his account and receives approximately $20.00 per month
from friends and relatives, and his “monthly expenses” are $18.00 to $30.00. However, this
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declaration makes plain that Dailey can readily afford the initial partial filing fee of $1.66. Over a
month has passed since Dailey signed his objections on June 4, but Dailey has still not complied with
the order to pay the initial partial filing fee. His objections to the Magistrate Judge’s Report are
without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 8) is hereby 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. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 10 day of July, 2013.

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Ron Clark, United States District Judge

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