Simpson v. Mullins

Filing 9

PROPOSED FINDINGS AND RECOMMENDATION (recommending that the presiding District Judge DISMISS this civil action for failure to pay the filing fee, in full, as previously ordered by the court; and DENY as moot plaintiff's 5 LETTER-FORM MOTION for Appointment of Counsel). This case no longer referred to Magistrate Judge Mary E. Stanley. Objections to Proposed F&R due by 1/21/2011. Signed by Magistrate Judge Mary E. Stanley on 1/4/2011. (cc: plaintiff) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

CORY A. SIMPSON,
Plaintiff,
v.

Case No. 2:10-cv-00953

OFFICER TONEY,
Defendant.

CORY ANTHONY SIMPSON,
Plaintiff,
v.

Case No. 2:10-cv-00958

MICHAEL D. MULLINS,
Defendant.

CORY SIMPSON,
Plaintiff,
v.

Case No. 2:10-cv-01044

PROSECUTOR MARK PLANTS,
Defendant.

PROPOSED FINDINGS AND RECOMMENDATION
These three civil actions are assigned to the Honorable John
T. Copenhaver, Jr., United States District Judge, and they are
referred to the undersigned Magistrate Judge for submission of

proposed findings and recommendation for disposition, pursuant to
28 U.S.C. § 636(b)(1)(B).
On November 19, 2010, Judge Copenhaver entered a Memorandum
Opinion and Order (# 9) affirming the undersigned’s previous Orders
denying Plaintiff’s Applications to Proceed Without Prepayment of
Fees and Costs, and ordering Plaintiff to pay the $350 filing fee
in each civil action, on the basis that Plaintiff had, “on three or
more

prior

occasions,

while

incarcerated

or

detained

in

any

facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted” and that Plaintiff had not alleged that he was under
“imminent danger of serious physical injury” in any of the pending
Complaints.

See

28

U.S.C.

§

1915(g).

Judge

Copenhaver’s

Memorandum Opinion and Order directed Plaintiff to pay the $350
filing fee for each case he wished to pursue, in full, by December
20, 2010.

(# 9 at 6).

The Memorandum Opinion and Order advised

Plaintiff that the failure to pay the filing fee in full would
result in a recommendation to the presiding District Judge that the
affected civil action be dismissed.

(Id.)

As of this date, Plaintiff has not paid the $350 filing fee in
any of the above-referenced cases. Accordingly, it is respectfully
RECOMMENDED that the presiding District Judge DISMISS each of the
above-referenced civil actions for failure to pay the filing fee,

2

in full, as previously ordered by the court.
Pending in Case No. 2:10-cv-00953 is Plaintiff’s Letter-form
Motion for Copies of Incident Reports and Documents (# 5), and
pending in Case No. 2:10-cv-00958 is Plaintiff’s Letter-form Motion
for Appointment of Counsel (# 5).

In light of the recommended

dismissal of each of these civil actions, it is further RECOMMENDED
that the presiding District Judge DENY these motions as moot.
Plaintiff

is

notified

that

this

Proposed

Findings

and

Recommendation is hereby FILED, and a copy will be submitted to the
Honorable John T. Copenhaver, Jr., United States District Judge.
Pursuant to the provisions of Title 28, United States Code, Section
636(b)(1)(B), and Rules 6(e) and 72(b), Federal Rules of Civil
Procedure,

Plaintiff

shall

have

fourteen

days

(filing

of

objections) and then three days (service/mailing) from the date of
filing this Proposed Findings and Recommendation within which to
file with the Clerk of this court, specific written objections,
identifying

the

portions

of

the

Proposed

Findings

and

Recommendation to which objection is made, and the basis of such
objection.

Extension of this time period may be granted by the

presiding District Judge for good cause shown.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the district court and a
waiver of appellate review by the circuit court of appeals. Snyder
v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn,
3

474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

Copies

of

such

objections

shall

be

served

on

Judge

Copenhaver.
The Clerk is directed to file this Proposed Findings and
Recommendation in each of the above-referenced civil actions and to
mail a copy of the same to Plaintiff.
January 4, 2011
Date

4