Opinion
Case No. 3:15-CV-13-KRG-KAP
04-02-2015
RASHOD D. COSTON, Plaintiff v. MARK KIRBY, WARDEN, F.C.I. LORETTO, Defendant
Summary Report and Recommendation
What was docketed at docket no, 5 as plaintiff Coston's motion to vacate should be denied.
In January Coston filed an inadequate complaint with an inadequate motion to proceed in forma pauperis; I denied the motion and screened the complaint, explaining what steps Coston had to take. Coston did not pay the filing fee, or submit an up to date in forma pauperis motion, or file objections, or amend his complaint. The Court dismissed the complaint on February 4, 2015.
On March 20, 2015, the Clerk received correspondence that Coston also sent to the Court of Appeals that could be construed as a motion or notice of appeal, and has been docketed as both. The motion is dated March 6, 2015, and both copies were sent Priority Overnight mail by Federal Express in envelopes dated March 19, 2015. The motion represents that Coston never received my Report and Recommendation and that the complaint is adequate.
The motion should be denied. The discrepancy between the date of the motion and the date of the envelopes suggests that Coston falsely dated the motion to keep it within the periods prescribed by Fed.R.Civ.P. 59 for a motion to reconsider or by Fed.R.App.P. 4(a)(1)(A) for a notice of appeal. Since Coston received the Order dismissing his complaint that was sent to the same address he supplied I am also skeptical of his claim never to have received the Report and Recommendation. But if Coston would read the Order dismissing his complaint, he would notice that it was a dismissal without prejudice for failure to prosecute. Without prejudice means he is free to start again. There is no point to a mot ion to reconsider or to vacate, or a notice of appeal. If Coston wants to spend $505 to appeal an order that tells him to correct the mistakes in his complaint he is free to do so. If Coston pays the filing fee or files an adequate motion to proceed in forma pauperis, and submits an amended complaint, the Clerk will docket them.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to serve and file written objections to this Report and Recommendation. DATE: April 2, 2015
/s/_________
Keith A. Pesto,
United States Magistrate Judge
Notice by U.S. Mail to:
Rashod D. Coston
Apartment 5C
233 W. 140th Street
New York, NY 10030