Opinion
CIV-12-753-F
08-23-2012
MARKOS N. PAPPAS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. §1346 on July 2, 2012. The matter was referred to the undersigned Magistrate Judge by United States District Judge Friot on July 3, 2012, for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, it is recommended that the cause of action be dismissed without prejudice due to Plaintiff's failure to pay the initial partial filing fee.
With his Complaint, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis in conformance with 28 U.S.C. §1915(a) as amended. After review of Plaintiff's motion on July 25, 2012, the undersigned granted Plaintiff's motion to proceed without full prepayment of the filing fee and directed Plaintiff to pay an initial partial filing fee of $38.83 by August 15, 2012, in accordance with 28 U.S.C. § 1915(b)(1). Plaintiff was advised that he would be required to make monthly payments of 20 percent of the preceding month's income credited to his prison account(s) until the full $350 filing fee was paid. He was also advised that failure to either (1) pay the initial partial filing fee, or (2) show cause in writing for his failure to do so could result in dismissal of this action without prejudice to refiling. As of this date, the Court's records show that Plaintiff has failed to either pay the initial partial filing fee, show cause in writing why he is unable to do so, or request a further extension of time within which to pay the required initial partial filing fee. Because of Plaintiff's failure to pay the required initial partial filing fee and the expiration of the time given Plaintiff to make such payment, the action should be dismissed without prejudice to refiling. LCvR 3.4(a); Freeman v. Colo. Dep't of Corrections, 396 Fed.Appx. 543, 2010 WL 3818077 (10th Cir. Oct. 1, 2010) (affirming dismissal without prejudice of §1983 action for failure to pay initial partial filing fee)(unpublished op.); Barnett v. Ray, 320 Fed. Appx. 823, 2009 WL 821419 (10th Cir. Mar. 31, 2009)(unpublished op.)(same).
RECOMMENDATION
Accordingly, it is recommended that Plaintiff's cause of action be dismissed without prejudice to refiling for failure to pay the initial partial filing fee or to show cause for his failure to do so. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 12th, 2012, in accordance with 28 U.S.C. §636 and LCvR 72.1. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
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GARY M. BURCELL
UNITED STATES MAGISTRATE