Opinion
Civil Action No. 06-cv-01352-PSF-PAC.
February 28, 2007
ORDER ON RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Recommendation of United States Magistrate Judge (Dkt. # 21), issued on December 19, 2006, that plaintiff's complaint be dismissed without prejudice. On January 8, 2007, Plaintiff filed his Objection to United States Magistrate Judge Recommendation (Dkt. # 23). Defendant filed a response on February 8, 2007 (Dkt. # 26), and the Colorado Department of Corrections ("DOC") filed a response as an interested party on February 8, 2007 (Dkt. # 27). Plaintiff filed his reply on February 22, 2007 (Dkt. # 30).
I. BACKGROUND
Plaintiff commenced this action on July 6, 2006, while incarcerated in the Arkansas Valley Correctional Facility. He was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Dkt. # 2). In that order, plaintiff was required to make monthly filing fee payments of twenty percent of the preceding month's income credited to his trust fund account or to show cause each month why he has no assets and no means by which to make the monthly payment. Id. at 2.
On November 9, 2006, plaintiff was ordered by the Magistrate Judge either to make the required monthly payments for the months of August, September, and October 2006 or to show cause why he has no assets and no means by which to make the monthly payments (Dkt. # 19). Plaintiff was also ordered to make the required monthly payment for each subsequent month, or to show cause each month why he has no assets and no means by which to make the monthly payment, by the 15th day of each month beginning in December 2006. On December 19, 2006, the Magistrate Judge issued the Recommendation that plaintiff's complaint and action be dismissed without prejudice for failure to comply with the November 9, 2006 Order.
II. ANALYSIS
The Court's review of the Magistrate Judge's Recommendation is governed by 28 U.S.C. § 636(b)(1) and F.R.Civ.P. 72(b). The standard of review is de novo. Id.
In his objection, plaintiff argues he was misled into believing that twenty percent of his monthly trust fund account deposits would be, and was, automatically deducted for filing fees by the DOC business office. Plaintiff also contends that he requested a money order in the amount of $8.50 on December 8, 2006, representing twenty percent of his account deposits for the month of November 2006, which was approved on December 10, 2006. Plaintiff asserts he filed a Certificate of Compliance on December 12, 2006, attaching a copy of his account statement for the month of November 2006. The $8.50 payment and Certificate of Compliance were received by the Court on December 18, 2006 (Dkt. ## 20, 22). In a January 18, 2007 filing (Dkt. # 24), plaintiff appears to claim no money was due for December 2006 given a lack of funds in his account. On February 22, 2007, a $20.00 payment was received by the Court as plaintiff's January 2007 payment (Dkt. ## 31, 32).
Even accepting plaintiff's compliance with the Magistrate Judge's order with respect to the payments for November and December 2006 and January 2007, and that plaintiff was "misled" into believing that the payments for August, September, and October 2006 would be automatically deducted from his account by the DOC, plaintiff has still failed to comply with the Magistrate Judge's order with respect to the payments for those earlier three months. First, plaintiff has failed to explain why he never questioned the DOC when his monthly statements presumably did not reflect that any money was being deducted for filing fees as promised. In addition, and more importantly, plaintiff has to this day failed to make payments for those months or to provide the Court with his trust fund account statements for those months as proof that he cannot pay. Thus, plaintiff has failed to comply with the Magistrate Judge's order either to make the required payments for August, September, and October 2006 or to show cause why he cannot.
III. CONCLUSION
After reviewing the underlying objection and the record de novo, and in light of the foregoing discussion, the Court concludes that the Recommendation of United States Magistrate Judge is correct and should be accepted. Accordingly, it is ORDERED that the case is DISMISSED WITHOUT PREJUDICE.