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Nickles v. Cain

United States District Court, M.D. Louisiana

March 4, 2015

CLENANT NICKLES (#131849)
v.
BURL CAIN

SUPPLEMENTAL MAGISTRATE JUDGE'S REPORT

STEPHEN C. RIEDLINGER, Magistrate Judge.

A Magistrate Judge's Report was issued February 11, 2015 recommending that the plaintiff's complaint be dismissed for failure to pay the court's filing fee.[1] Plaintiff filed Petitioner's Objections to the Magistrate Judge's Report and Recommendation.[2] The district judge referred the matter back to the magistrate judge for consideration of the plaintiff's objections.

Plaintiff's objections have been considered - and they are meritless. First, the February 15, 2015 Offender Funds Withdrawal Request he attached to his objections was not for this case.[3] It was for CV 14-260-BAJ-SCR, and the fee was actually received in that case on February 25, 2015. There is no document showing that the plaintiff ever requested withdrawal of the $5.17 partial filing fee for this case from his inmate account, and he has had more than six months to provide it.

Second, the plaintiff's withdrawal request for CV 14-620-BAJ-SCR refutes his argument that prison officials take two to three weeks to make the fee payment after the inmate places money in his account and requests the withdrawal.[4] Instead, the document shows that the time from the date of the requested withdrawal to receipt by the court is much less. For his February 15 withdrawal request the time was 10 days.

Finally, it bears repeating that when the plaintiff moved to proceed in forma pauperis, he had sufficient funds in his inmate account to pay the partial filing fee.[5] He simply failed to pay the partial filing fee and apparently spent his money on other things. That failure, his failure to respond to the Order to Show Cause, combined with the untruthful arguments made in his objections, support finding that the plaintiff has willfully refused to comply with the August 12, 2014 order to pay the partial filing fee. His complaint should be dismissed.[6]

RECOMMENDATION

It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed without prejudice for failure to pay the court's filing fee.


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