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Barnes v. Peebles

United States District Court, S.D. Illinois

July 16, 2014

GEORGE L. BARNES, Plaintiff,
v.
MICHAEL PEEBLES and UNKNOWN OFFICERS, Defendants.

REPORT AND RECOMMENDATION

DONALD G. WILKERSON, Magistrate Judge.

This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the issue of the Initial Filing Fee. For the reasons set forth below, it is RECOMMENDED that this matter be DISMISSED WITHOUT PREJUDICE and that the Court adopt the following findings of fact, conclusions of law, and recommendations.

FINDINGS OF FACT

On December 6, 2013, District Judge J. Phil Gilbert issued an Order directing Plaintiff to pay an initial partial filing fee of $15.30. At that time, Plaintiff, who was incarcerated at the Graham Correctional Center, had an available balance of $46.42 in his Trust Fund Account (Doc. 6). At no point after entry of that Order did Plaintiff object to the imposition of the initial filing fee.

On January 22, 2014, this Court directed Plaintiff to pay the initial filing fee by February 21, 2014, noting that he had been released from prison (Doc. 18). Plaintiff was warned that the failure to pay by the deadline would result in a report and recommendation that this matter be dismissed for failure to prosecute, among other things. Plaintiff subsequently filed a notice of change of address, indicating that he was again incarcerated (Docs. 22 and 23). On May 2, 2014, this Court sua sponte granted Plaintiff until June 6, 2014 to pay the entire filing fee and was again warned of the consequences for failing to pay. As of the date of this Report and Recommendation, Plaintiff has only paid $6.40 towards the initial filing fee imposed by Judge Gilbert.

CONCLUSIONS OF LAW

Title 28 U.S.C. § 1915(a)(1), allows a party to proceed without the prepayment of the entire $350.00 filing fee provided that an affidavit is submitted listing all assets that the prisoner possesses. Section 1915(b) further provides for the assessment of an initial filing fee with a requirement of additional monthly payments until the entire filing fee has been paid. At the time the initial $15.30 filing fee was imposed, Plaintiff had the ability to pay that amount. See Miller v. Hardy, 497 Fed.Appx 618, 620 (7th Cir. 2012) ("The relevant inquiry is the state of the inmate's finances at the time of filing."). The obligation to pay the initial filing fee rests with the Plaintiff, not the institution where he is housed. Plaintiff neither objected to the imposition of an initial filing fee nor has he shown that he does not have the ability to pay. Plaintiff has failed to pay the entire initial filing fee as directed despite being warned of the consequences.

RECOMMENDATIONS

For the foregoing reasons, it is RECOMMENDED that this entire matter be DISMISSED WITHOUT PREJUDICE for the failure to pay the initial filing fee and the failure to comply with the Orders of this Court.

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003).


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