Opinion
Case No. 15-CV-2594 (DSD/TNL)
08-20-2015
THOMAS JAMES FOX, Plaintiff, v. THOMAS ROY, Commissioner; PENNY MALECHA, Director; HAROLD W. CLARKE, Director; AGENT DREW EVANS; SPECIAL AGENT GARY SWANSON; and INVESTIGATOR BARRY SMITH, Defendants.
REPORT AND RECOMMENDATION
Plaintiff Thomas James Fox, a prisoner, commenced this action by filing a complaint against the named defendants. Fox did not pay the required filing fee for this case, but instead filed an application seeking leave to proceed in forma pauperis ("IFP"). See ECF No. 2. In an order dated July 20, 2015, this Court ordered Fox to pay an initial partial filing fee of $6.45 within 20 days of the date of the order, failing which it would be recommended that this action be dismissed without prejudice for failure to prosecute. See ECF No. 7 (citing Fed. R. Civ. P. 41(b)).
This Court also cautioned Fox that he had attempted to improperly join two unrelated sets of defendants and that, if he wished to proceed in this litigation, he would be required to choose which group of claims he intended to pursue in this case. See ECF No. 7. --------
That deadline has now passed, and Fox has not paid the required filing fee. In fact, Fox has not communicated with the Court about this case at all since this Court ordered him to pay the initial partial filing fee. Accordingly, this Court now recommends, in accordance with its prior order, that this action be dismissed without prejudice under Rule 41(b) for failure to prosecute. See Henderson v. Renaissance Grand Hotel, 267 Fed. App'x 496, 497 (8th Cir. 2008) (per curiam) ("A district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order.").
RECOMMENDATION
Based upon the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:
1. This action be DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. P. 41(b) for failure to prosecute.Dated: August 20, 2015
2. Plaintiff Thomas James Fox's application to proceed in forma pauperis [ECF No. 2] be DENIED AS MOOT.
3. Fox's motion for transfer [ECF No. 3] be DENIED AS MOOT.
s/Tony N . Leung
Tony N. Leung
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. Under Local Rule 72.2(b)(1), "a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy" of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses must comply with the word or line limits set for in LR 72.2(c). Under Advisement Date: This Report and Recommendation will be considered under advisement 14 days from the date of its filing. If timely objections are filed, this Report and Recommendation will be considered under advisement from the earlier of: (1) 14 days after the objections are filed; or (2) from the date a timely response is filed.