Roybal v. Schnell
U.S. District Court, District of Minnesota
Roybal v. Schnell
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kristopher Lee Roybal; Damion John Case No. 24-cv-1652 (ECT/DTS)
Gullickson, Jr.; Shawn Joseph Nelson;
and Cameron Eugene Urban,
Plaintiffs, REPORT AND RECOMMENDATION
v.
Paul Schnell, Commissioner of
Correction, sued in his official capacity,
Defendant.
The complaint filed in this matter named sixteen prisoners of the State of
Minnesota as plaintiffs. All but four of those plaintiffs— Kristopher Lee Roybal; Damion
John Gullickson, Jr.; Shawn Joseph Nelson; and Cameron Eugene Urban—have been
dismissed from this matter for failure to prosecute after those plaintiffs failed to apply for
in forma pauperis (IFP) status or pay the filing fee for this matter. See Dkt. No. 26 (Report
and Recommendation); Dkt. No. 30 (Order adopting Report and Recommendation). The
four plaintiffs who had submitted IFP applications were each directed to pay the required
initial partial filing fee for this matter within 21 days of June 27, 2024—that is, by July 18,
2024—failing which it would be recommended that any non-compliant plaintiff would be
dismissed from this action without prejudice for failure to prosecute. See Fed. R.
Civ. P. 41(b).
Roybal requested (and received) an extension of that deadline until August 12,
2024, but the other three plaintiffs did not respond in any way to the Court’s order
establishing an initial partial filing fee. Roybal now has paid his initial partial filing fee.
The other plaintiffs, however, have not, and their deadline for doing so (which was never
extended for them beyond July 18, 2024) has now passed. Accordingly, this Court now
recommends, consistent with the warning previously given to Gullickson, Nelson, and
Urban, that those plaintiffs be dismissed without prejudice from this action under
Rule 41(b) for failure to prosecute. See Wewerka v. Roper, 431 F. App’x 517, 517
(8th Cir. 2011) (per curiam) (affirming dismissal without prejudice pursuant to Rule 41(b)
following prisoner’s failure to pay initial partial filing fee). The IFP applications filed by
each of those plaintiffs may be denied as moot should those plaintiffs be dismissed from
this action for failure to prosecute. Roybal’s application to proceed IFP will be granted by
separate order.
RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS THAT:
1. Plaintiffs Damion John Gullickson, Jr.; Shawn Joseph Nelson; and
Cameron Eugene Urban be DISMISSED WITHOUT PREJUDICE from this action.
2. Gullickson’s application to proceed in forma pauperis [Dkt. No. 22] be
DENIED AS MOOT.
3. Nelson’s application to proceed in forma pauperis [Dkt. No. 23] be DENIED
AS MOOT.
4. Urban’s application to proceed in forma pauperis [Dkt. No. 24] be DENIED
AS MOOT.
Dated: August 7, 2024 __s/David T. Schultz_____
DAVID T. SCHULTZ
U.S. 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. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c). Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kristopher Lee Roybal; Damion John Case No. 24-cv-1652 (ECT/DTS)
Gullickson, Jr.; Shawn Joseph Nelson;
and Cameron Eugene Urban,
Plaintiffs, REPORT AND RECOMMENDATION
v.
Paul Schnell, Commissioner of
Correction, sued in his official capacity,
Defendant.
The complaint filed in this matter named sixteen prisoners of the State of
Minnesota as plaintiffs. All but four of those plaintiffs— Kristopher Lee Roybal; Damion
John Gullickson, Jr.; Shawn Joseph Nelson; and Cameron Eugene Urban—have been
dismissed from this matter for failure to prosecute after those plaintiffs failed to apply for
in forma pauperis (IFP) status or pay the filing fee for this matter. See Dkt. No. 26 (Report
and Recommendation); Dkt. No. 30 (Order adopting Report and Recommendation). The
four plaintiffs who had submitted IFP applications were each directed to pay the required
initial partial filing fee for this matter within 21 days of June 27, 2024—that is, by July 18,
2024—failing which it would be recommended that any non-compliant plaintiff would be
dismissed from this action without prejudice for failure to prosecute. See Fed. R.
Civ. P. 41(b).
Roybal requested (and received) an extension of that deadline until August 12,
2024, but the other three plaintiffs did not respond in any way to the Court’s order
establishing an initial partial filing fee. Roybal now has paid his initial partial filing fee.
The other plaintiffs, however, have not, and their deadline for doing so (which was never
extended for them beyond July 18, 2024) has now passed. Accordingly, this Court now
recommends, consistent with the warning previously given to Gullickson, Nelson, and
Urban, that those plaintiffs be dismissed without prejudice from this action under
Rule 41(b) for failure to prosecute. See Wewerka v. Roper, 431 F. App’x 517, 517
(8th Cir. 2011) (per curiam) (affirming dismissal without prejudice pursuant to Rule 41(b)
following prisoner’s failure to pay initial partial filing fee). The IFP applications filed by
each of those plaintiffs may be denied as moot should those plaintiffs be dismissed from
this action for failure to prosecute. Roybal’s application to proceed IFP will be granted by
separate order.
RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS THAT:
1. Plaintiffs Damion John Gullickson, Jr.; Shawn Joseph Nelson; and
Cameron Eugene Urban be DISMISSED WITHOUT PREJUDICE from this action.
2. Gullickson’s application to proceed in forma pauperis [Dkt. No. 22] be
DENIED AS MOOT.
3. Nelson’s application to proceed in forma pauperis [Dkt. No. 23] be DENIED
AS MOOT.
4. Urban’s application to proceed in forma pauperis [Dkt. No. 24] be DENIED
AS MOOT.
Dated: August 7, 2024 __s/David T. Schultz_____
DAVID T. SCHULTZ
U.S. 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. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c). Reference
- Status
- Unknown