Upchurch v. Vittorio
- Eric Tostrud
- 0:25-cv-04630
- U.S. District Court · District of Minnesota
- 2
In Upchurch v. Dr. Vittorio, Judge Tostrud dismissed the complaint without prejudice for failing to state a legal claim.
Prisoners or other individuals who file civil lawsuits in federal court without an attorney, particularly those who seek to proceed without prepaying filing fees. This order illustrates that even when such a case is dismissed, the court may still require payment of the filing fee from the plaintiff's prison account.
What happened
In Upchurch v. Dr. Vittorio (No. 25-cv-4630, District of Minnesota), plaintiff Eric S. Upchurch, II filed a lawsuit against a defendant identified only as Dr. Vittorio. Magistrate Judge Dulce J. Foster issued a Report and Recommendation on February 13, 2026, concluding that the complaint should be dismissed for failing to state a claim on which relief could be granted. No party objected to that recommendation, so the district court reviewed it only for clear error.
Finding no clear error, the court accepted the Magistrate Judge's Report and Recommendation in full. Because the case was being dismissed, the court also denied as moot Upchurch's application to proceed without paying court fees (sometimes called an in forma pauperis application) and his motion to have a lawyer appointed for him.
Judge Eric C. Tostrud dismissed Upchurch's complaint without prejudice — meaning Upchurch is not permanently barred from re-filing — but ordered him to pay the remaining unpaid filing fee of $339.72. Under the relevant federal statute (28 U.S.C. § 1915(b)(2)), that fee is to be collected from Upchurch's prison account in installments, and the Clerk of Court was directed to notify the institution where Upchurch is held.
The detailed version
- Upchurch v. Vittorio · No. 0:25-cv-04630
- Eric Tostrud
- Mar. 24, 2026
Background
Plaintiff Eric S. Upchurch, II, who appears to be a prisoner based on the filing-fee provisions applied, filed a complaint against a defendant identified as Dr. Vittorio in the United States District Court for the District of Minnesota. The opinion does not describe the underlying facts or causes of action alleged in the complaint.
Upchurch also filed an application to proceed in forma pauperis (IFP) — a request to proceed without prepaying the court's filing fee — and a motion to appoint counsel.
Magistrate Judge's Report and Recommendation
Magistrate Judge Dulce J. Foster issued a Report and Recommendation (R&R) on February 13, 2026, recommending dismissal of the complaint for failure to state a claim upon which relief may be granted. This is a standard threshold reviewed under Federal Rule of Civil Procedure 12(b)(6): a complaint must allege enough facts to support a plausible legal claim. The opinion does not describe the specific deficiencies Magistrate Judge Foster identified.
No party objected to the R&R within the applicable time period.
Standard of Review
Where no objections are filed to a magistrate judge's R&R, the district court reviews it for clear error only. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996). This is a more deferential standard than the de novo (fresh) review that would apply if a party had objected.
Rulings
Judge Tostrud found no clear error and accepted the R&R. The court's orders are:
1. Complaint dismissed without prejudice — The complaint is dismissed for failure to state a claim. Because the dismissal is without prejudice, Upchurch is not permanently barred from filing a new complaint, although whether he could successfully do so would depend on the specific deficiencies identified in the R&R, which are not described in this order.
2. IFP application denied as moot — Because the case is dismissed, Upchurch's request to proceed without paying fees in advance is denied as moot (i.e., no longer relevant to a live case).
3. Motion to appoint counsel denied as moot — For the same reason, Upchurch's request for appointed counsel is denied as moot.
4. Filing fee obligation imposed — Notwithstanding the dismissal, Upchurch remains obligated to pay the unpaid balance of the statutory filing fee, totaling $339.72. Under 28 U.S.C. § 1915(b)(2), a prisoner who has been granted IFP status (or whose IFP application is pending) is still required to pay the full filing fee over time through deductions from the prisoner's trust account. The Clerk of Court is directed to notify the institution where Upchurch is confined of this obligation.
Notes
The opinion does not describe the substance of the complaint, the legal theories alleged, or the specific reasons Magistrate Judge Foster concluded the complaint failed to state a claim. The detailed analysis is contained in the R&R (ECF No. 10), which is not reproduced here.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.