Mark v. Birkholz

Background

Justin Mark was the petitioner. The respondents were B. Birkholz, identified as the warden of Federal Prison Camp Duluth, and Michael Carvajal, identified as the director of the Federal Bureau of Prisons. The opinion states that both respondents were sued in their official capacities.

Filing-fee deadline

In an order dated September 1, 2021, the court directed Mark to submit the action’s filing fee or an application to proceed without paying the fee. The court gave him 21 days, until September 22, 2021, to make that submission. The order warned that failure to do so would lead to a recommendation that the action be dismissed without prejudice for failure to prosecute.

The deadline passed without Mark submitting either the filing fee or an application. The report also states that Mark had not communicated with the court about the case since starting it.

Recommendation and procedure

Magistrate Judge Tony N. Leung recommended dismissing the action without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The report cited the court’s authority to dismiss an action when a party fails to prosecute or comply with the Federal Rules of Civil Procedure or a court order.

The report and recommendation was not a final order or judgment of the District Court and therefore was not directly appealable to the U.S. Court of Appeals for the Eighth Circuit. Under the cited local rule, a party could file specific written objections within 14 days after being served with the report, and a response to objections could be filed within 14 days after service of those objections.