Opinion
Case No. 4:05-cv-00421-MP-AK.
June 8, 2006
ORDER
This matter is before the Court on Doc. 29, Report and Recommendation of the Magistrate Judge, recommending that plaintiff's complaint, Doc. 1, be dismissed with prejudice for failure to prosecute, failure to obey a court order, and as frivolous. The Magistrate also recommended that this dismissal constitute a "strike" within the meaning of 28 U.S.C. § 1915(g). The Magistrate Judge filed the Report and Recommendation on Thursday, May 4, 2006. The parties have been provided with a copy of the Report and have been afforded the opportunity to file objections. Defendant has filed objections to the Magistrate's Report, Doc. 30. Pursuant to Title 28, United States Code, Section 626(b)(1), this Court must make a de novo review of those portions to which an objection is made.
As the Magistrate stated in his report, Plaintiff "was ordered to pay a partial filing fee of $206.78 on or before March 24, 2006. No fee has been submitted." Doc. 29 at 1. In his objections, Plaintiff fails to adequately explain his failure to file the required fee in accordance with the Magistrate's previous order. If Plaintiff was serious about following the court's previous orders, he could have simply enclosed the required funds with his objections. The court agrees with the Magistrate's finding that "Plaintiff has considerable funds available to him, which he chooses to spend on items other than paying for the lawsuits he wishes to file in this Court." Id. at 2. Therefore, this case should be dismissed. Furthermore, Plaintiff's failure to pay and excessive delay in this case warrants this dismissal being deemed a "strike" within the meaning of 28 U.S.C. § 1915(g). Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. This case is dismissed with prejudice for failure to prosecute, failure to obey a court order, and as frivolous. The Clerk is directed to note on the docket that this dismissal constitutes a "strike" within the meaning of 28 U.S.C. § 1915(g).
DONE AND ORDERED.