United States District Court, S.D. Illinois
WALTER D. HILL, Plaintiff,
JOSEPH R. MURPHY and BRAD ROESSLER, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation (“Report”) (Doc. 176) of
Magistrate Judge Stephen C. Williams recommending that the
Court deny the motion to dismiss filed by defendants Joseph
R. Murphy and Brad Roessler for plaintiff Walter D.
Hill's failure to file the required initial partial
filing fee (Doc. 161). The defendants have filed objections
to the Report (Doc. 180), and Hill has responded to those
objections (Doc. 181).
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. Id. “If no
objection or only partial objection is made, the district
court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999).
Report, Magistrate Judge Williams notes that the Court
assessed Hill an initial partial filing fee of $67.27 under
28 U.S.C. § 1915(b) when he filed this case and while he
was incarcerated in the Bureau of Prisons
(“BOP”), and that it further ordered payments
thereafter of 20% of Hill's trust fund account balance
until the entire $350.00 filing fee was paid. The BOP
collected and paid $57.00 of the initial partial filing fee,
but Hill was then released at the end of serving his
sentence, so the BOP could no longer collect any fees from
his inmate trust fund account. Magistrate Judge Williams
recommends the Court deny the defendants' motion to
dismiss this case based Hill's failure to pay the balance
of full initial partial filing fee - $10.27 - because it was
not his fault the BOP failed to collect the entire amount
due. He also recommends the Court decline to order any
further payment at this time in light of Hill's
continuing indigent status.
their objections, the defendants complain that Magistrate
Judge Williams insufficiently considered whether Hill
squandered his fund after he was released from prison and
improperly accepted Hill's current statement of his
finances without independent verification, when earlier
testimony on an unrelated issue suggested Hill lies. They
also argue Hill was at fault for failing to pay his filing
fee because he spent his money instead on a car and related
costs after he was released from prison. The defendants also
raise a new argument - that Hill's complaint is frivolous
or malicious and should therefore be dismissed under 28
U.S.C. § 1915(e)(2)(B)(i) - and hint at other new
arguments that are not fully fleshed out. Finally, they
complain that Magistrate Judge Williams failed to expressly
rule on their request to strike appointed counsel and
improperly stayed the Court of Appeals' fee assessment
order. Hill responds, urging the Court to adopt Magistrate
Judge Williams' Report.
Court has reviewed the matter de novo. As for the
defendants' complaints about the way Magistrate Judge
Williams resolves issues they raised before him, the Court
finds his thorough and well-reasoned Report correct for the
reasons stated therein.
the defendants' new arguments, those arguments are waived
as to the current motion because they were not raised in the
motion. Ordinarily, arguments raised for the first time in an
objection are waived. United States v. Melgar, 227
F.3d 1038, 1040 (7th Cir. 2000); see Divane v. Krull
Electric Co., 194 F.3d 845, 849 (7th Cir. 1999).
“Failure to raise arguments will often mean that facts
relevant to their resolution will not have been developed;
one of the parties may be prejudiced by the untimely
introduction of an argument . . . . Additionally, a
willingness to consider new arguments at the district court
level would undercut the rule that the findings in a
magistrate judge's report and recommendation are taken as
established unless the party files objections to them.”
Melgar, 227 F.3d at 1040. The defendants have not
pointed to any special circumstances to justify deviating
from the ordinary rule of waiver.
the defendants' argument that Magistrate Judge Williams
failed to address their request to strike counsel and
improperly stayed a Court of Appeals order, Magistrate Judge
Williams' implicit recommendation not to reconsider
recruitment of counsel is correct. None of the arguments by
the defendants present the type of extraordinary
circumstances that would justify reconsideration of a
non-final order. Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988). Finally, no party has
requested, and this Court has not ordered, a stay of any
Court of Appeals order. The defendants' argument in this
regard is misplaced.
a de novo review of the matter, the Court hereby:
• ADOPTS the Report in its entirety (Doc. 176);
• OVERRULES the defendants' objections (Doc. 180);
• DENIES the defendants' motion to dismiss ...