Opinion
CIV-21-95-D
05-04-2021
JOEDELL ROBERT PERKINS, Plaintiff, v. FNU BOWEN, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFILED GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, filed a complaint alleging violation of his civil rights. (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). Based on Plaintiff's failure to pay the initial payment towards his filing fee, the undersigned recommends that the court dismiss the action without prejudice.
On February 18, 2021, the court granted Plaintiff leave to proceed without prepayment of the full filing fee (in forma pauperis, “IFP”). (Doc. 5). Under 28 U.S.C. §§ 1914, 1915(b)(1), Plaintiff was still required to pay the $350.00 filing fee in installments, with an initial partial fee payment of $12.10 due on March 11, 2021, before his action could proceed. (Doc. 5, at 1). The court advised Plaintiff that “this action will be subject to dismissal without prejudice to re-filing” for failure to make the initial payment. (Id.) Plaintiff failed to timely make the initial payment. On March 25, 2021, the court issued an order to show cause directing Plaintiff “to show cause through a written submission to the court, no later than April 8, 2021, why this case should not be dismissed for Plaintiff's failure to pay the initial filing fee.” (Doc. 6, at 1). Plaintiff has not responded to the court's order to show cause.
Proceeding IFP “in a civil case is a privilege, not a right - fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (internal quotation marks omitted). To date, Plaintiff has not paid the initial partial fee or responded to the court's order to show cause. Accordingly, the undersigned recommends that the court dismiss Plaintiff's action without prejudice to refiling. See LCvR3.2 (“Except as provided in LCvR3.3 [governing IFP applications] or by order of the Court in a specific case, the clerk of this court shall require payment of the filing fees before any civil action, suit, or proceeding is filed.”).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 25, 2021, under 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in this matter.