Reported / Citable
Background
Kernelius Marquis Shepherd, Sr., proceeding without counsel, filed suit against Frank Saunders and others. The district court referred the matter to U.S. Magistrate Judge Zack Hawthorn for findings, conclusions, and recommendations.
On May 28, 2024, the court ordered Shepherd to pay an initial partial filing fee within 30 days. Shepherd acknowledged receiving the order on June 6, but the deadline passed without payment or other communication from him.
The Court’s Holding
The magistrate judge concluded that Shepherd had failed to diligently prosecute the lawsuit by not complying with the filing-fee order. Federal Rule of Civil Procedure 41(b), the report explained, permits dismissal when a plaintiff fails to prosecute an action or obey a court order.
The report recommended that the district court dismiss the lawsuit without prejudice for want of prosecution. Because the document is a report and recommendation, it proposed a disposition rather than entering a final dismissal itself.
Key Takeaways
- A plaintiff’s failure to comply with a court order may support dismissal under Rule 41(b).
- Shepherd neither paid the ordered initial partial filing fee nor contacted the court before the deadline expired.
- The recommended dismissal was without prejudice, and written, specific objections were due within 14 days after service of the report.
Why It Matters
The recommendation illustrates that even an early procedural requirement, such as payment of an initial partial filing fee, must be addressed promptly. A litigant’s failure to comply or communicate with the court can be treated as a failure to prosecute.
It also underscores the importance of objecting timely to a magistrate judge’s report, because failure to do so may limit district-court and appellate review of the accepted findings and conclusions.