Opinion
NO: 1:15CV00121 BRW/PSH
12-15-2015
VICTORIA GARRETT ADC #708139 PLAINTIFF v. MOORE et al DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The following Proposed Findings and Recommendation have been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
Plaintiff Victoria Garrett filed a pro se complaint, pursuant to 42 U.S.C. § 1983, on November 9, 2015. Plaintiff did not pay the filing fee and her application for leave to proceed in forma pauperis was incomplete. On November 10, 2015, the Court entered an order denying plaintiff's incomplete application for leave to proceed in forma pauperis, and directing plaintiff to pay the filing fee or file a fully completed application for leave to proceed in forma pauperis, and to file an amended complaint, within 30 days (docket entry 3). That order also warned plaintiff that her failure to do so within 30 days would result in the recommended dismissal of her complaint. More than 30 days have passed, and plaintiff has not paid the filing fee, filed an application for leave to proceed in forma pauperis, filed an amended complaint, or otherwise responded to the order. Under these circumstances, the Court concludes that plaintiff's complaint should be dismissed without prejudice for failure to pay the filing fee, failure to comply with Local Rule 5.5(c)(2), and failure to respond to the Court's order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and exercise of that power is reviewed for abuse of discretion).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to pay the filing fee, failure to comply with Local Rule 5.5(c)(2), and failure to respond to the Court's order.
2. The Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith.
DATED this 15th day of December, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE