Opinion
Case No. 17-CV-0831 (JNE/TNL)
07-13-2017
ALBERT R. STEWARD, III, Plaintiff, v. DISCOVER BANK, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Albert R. Steward, III, did not pay the filing fee for this action, but instead applied for in forma pauperis ("IFP") status. See ECF No. 2. Defendant Discover Bank opposed the IFP application on the grounds that the action is malicious. See ECF No. 3; 28 U.S.C. § 1915(e)(2)(B). In an order dated June 7, 2017, this Court found that the action could not be deemed malicious at this time. See ECF No. 9. But the Court also declined to grant the IFP application, noting that the information provided in that application was difficult to square with the allegations raised by Steward in the complaint. Accordingly, this Court directed Steward to submit additional documentation demonstrating that he qualified financially for IFP status, along with an affidavit declaring, under penalty of perjury, that the information contained in those documents was truthful to the best of Steward's knowledge. Steward was given 20 days in which to submit the required documentation and affidavit, failing which it would be recommended that this matter be dismissed without prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b).
That deadline has now passed, and Steward has not submitted the required documentation or affidavit. In fact, Steward has not communicated with the Court about this case at all since this Court's June 7 order. 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 this action be DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. P. 41(b) for failure to prosecute. Dated: July 13, 2017
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 forth in LR 72.2(c).