Opinion
Case No. CIV-20-841-SLP
11-04-2020
DENISE BONFILIO, Plaintiff, v. FNU BALTAZAR, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se, filed a civil rights complaint and motion for temporary restraining order together with a motion for leave to proceed in forma pauperis (without prepaying fees or costs). United States District Judge Scott L. Palk referred the matter to Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). That referral was transferred to the undersigned Magistrate Judge on October 23, 2020. For the reasons set forth herein, the undersigned recommends that the complaint be dismissed without prejudice.
By order of this court dated October 6, 2020, Magistrate Judge Suzanne Mitchell granted Plaintiff's motion to proceed in forma pauperis (Doc. 11); however, Plaintiff was advised that, in accordance with the provisions of 28 U.S.C. § 1915(b), she would be required to pay the $350 filing fee as set forth in that order, including an initial payment in the amount of $53.81 due on or before October 27, 2020. (Id.) Plaintiff was further advised that failure to comply with that order could result in dismissal of this action without prejudice to refiling. (Id.)
A review of the court file reveals that as of this date, Plaintiff has not made such payment, requested an extension of time within which to pay, nor demonstrated good cause for her failure to pay. Therefore, the undersigned recommends that this action be dismissed without prejudice to refiling. L.Cv.R. 3.4(a). See, cf., Cosby v. Meadors, 351 F.3d 1324, 1326-33 (10th Cir. 2003) (upholding dismissal of civil rights complaint based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay).
RECOMMENDATION
Accordingly, because Plaintiff has neither paid the partial filing fee as ordered by this court nor shown good cause for such failure, it is recommended that this action be dismissed without prejudice to refiling. Plaintiff is advised of her right to file objections to this Report and Recommendation with the Clerk of this Court within 14 days after service of the same, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives her right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 4th day of November, 2020.
/s/_________
AMANDA MAXFIELD GREEN
UNITED STATES MAGISTRATE JUDGE