Opinion
CASE NO. 19-cv-5463
09-17-2019
KENNETH R. ARONSON, Petitioner, v. STATE OF WASHINGTON, Respondent.
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION
THIS MATTER comes before the Court on the Report and Recommendation of Magistrate Judge J. Richard Creatura. Dkt. 10. The Court is familiar with the Report and Recommendation and the remainder of the record herein. For the reasons set forth below, the Court declines to adopt the Report and Recommendation.
BACKGROUND
On May 21, 2019, Petitioner filed his proposed petition with the United States District Court in the Eastern District of Washington. Dkt. 1. The Clerk of Court for the Eastern District of Washington informed Petitioner that the court needed to receive an Application to Proceed without Prepayment of Fees and Affidavit with a Certificate or, in the alternative, receive a $5.00 filing fee. Dkt. 2.
On May 23, 2019, the case was transferred to the Western District of Washington. Dkt. 3. On May 24, 2019, the Clerk's Office instructed Petitioner to pay the filing fee or file the proper IFP form and provided petitioner with the correct form. Dkts. 5; and 5-1. On June 3, 2019, the Clerk's Office again instructed Petitioner to pay the filing fee or file the proper IFP form by July 3, 2019, and it provided Petitioner with the correct form. Dkt. 8. On July 23, 2019, the Court ordered Petitioner to submit the proper IFP form or pay the filing fee by August 23, 2019. Dkt. 9. The Court advised petitioner that if he failed to comply with the Court's Order, the Court would recommend that the case be dismissed. Dkt. 9.
The instant Report and Recommendation, dated September 10, 2019, states that "Petitioner has failed to pay the filing fee or submit the proper IFP form." Dkt. 10, at 2. The Report and Recommendation recommends that Petitioner's action be dismissed without prejudice for not complying with the court's order to submit the proper IFP form or to pay the filing fee by August 23, 2019. Dkt. 10.
Petitioner paid the $5.00 filing fee on June 17, 2019, in the Eastern District of Washington, but it was not entered in this district until September 17, 2019. Dkt. 11.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal if a petitioner fails to prosecute or to comply with a court order. The dismissal counts as an adjudication on the merits unless the Court provides otherwise. Petitioner's $5.00 filing fee, paid on June 17, 2019, was not entered until September 17, 2019, and its payment is not reflected in the instant Report and Recommendation, dated September 10, 2019. Therefore, the Court declines to adopt the Report and Recommendation.
ORDER
Therefore, it is hereby ORDERED:
• The Court declines to adopt the Report and Recommendation (Dkt. 10); and
• The case remains referred to Magistrate Judge J. Richard Creatura.
IT IS SO ORDERED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
Dated this 17th day of September, 2019.
/s/_________
ROBERT J. BRYAN
United States District Judge