Darby v. Schmalenberger

Full title: Vonnie Darin Darby and All Those Similarly Situated, Plaintiffs, v. Robyn…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION

Date published: Nov 9, 2012

Case No. 1:12-cv-033 (D.N.D. Nov. 9, 2012)

Opinion

Case No. 1:12-cv-033

11-09-2012

Vonnie Darin Darby and All Those Similarly Situated, Plaintiffs, v. Robyn Schmalenberger, Warden, et al., Defendants.

Daniel L. Hovland

ORDER ADOPTING REPORT

AND RECOMMENDATION

Before the Court is Magistrate Judge Charles S. Miller Jr.'s "Order to Show Cause and Report and Recommendation" filed on May 7, 2012. See Docket No. 10. The Order to Show Cause and Report and Recommendation provides in relevant part as follows:

Based on the foregoing, it is hereby ORDERED that Darby shall have fourteen (14) days to show cause in writing why this court's prior order granting him leave to proceed in forma pauperis should not be vacated as improvidently granted and why leave to proceed in forma pauperis should not be denied based on his having accumulated three or more strikes pursuant to the "three strikes" provisions in 28 U.S.C. § 1915(g). Defendant is advised that failure to show good cause may result in the court taking the recommended action set forth below.
In addition, it is hereby RECOMMENDED as follows:
1. If Darby fails to show good cause for why the court's prior order granting leave to proceed in forma pauperis should not be granted, the court orders as follows:

a. The court's order dated April 2, 2012, granting Darby leave to proceed in forma pauperis (Doc. No. 4) be vacated and leave to proceed in forma pauperis be denied.
b. Darby be given an additional thirty days to file a paid complaint or the complaint be dismissed without prejudice.

2. In the alternative, this case be dismissed without prejudice for failure to state a claim.

See Docket No. 10, p. 18. Darby filed a "Response to Order to Show Cause and Report & Recommendation" on May 21, 2012. See Docket No. 12.

The Court has carefully reviewed Judge Miller's Order to Show Cause and Report and Recommendation, the relevant case law, and the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 10) in part and ORDERS as follows:

1) The court's order dated April 2, 2012, granting Darby leave to proceed in forma pauperis (Docket No. 4) be VACATED and leave to proceed in forma pauperis be DENIED; and
2) That this case is DISMISSED without prejudice for failure to state a claim.

IT IS SO ORDERED.

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Daniel L. Hovland, District Judge

United States District Court