-1-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BROOKS L. MAULDIN,

No.09-10245

Plaintiff, District Judge David M. Lawson

v. Magistrate Judge R. Steven Whalen

JANET NAPOLITANO, Secretary

of Homeland Security,

Defendant.

 /

REPORT AND RECOMMENDATION

I. REPORT

On January 22, 2009, Plaintiff Brooks L. Mauldin filed a pro se civil complaint

naming as the Defendant Janet Napolitano, the Secretary of Homeland Security. On

February 25, 2009, I denied his application for leave to proceed in forma pauperis, and

ordered him to pay the full filing fee within 21 days. He was warned that “failure to do so

may result in the dismissal of his complaint.” As of today, 57 days have passed since that

order, and Plaintiff has not paid the filing fee. For the reasons that follow, I recommend

that the Plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE.

The Plaintiff has filed nine other cases in this Court. Six were dismissed without

prejudice based on Plaintiff’s failure to pay the filing fee. See Mauldin v. Cherthoff, 08-

14063; Mauldin v. Dept. of Homeland Security, 08-14361; Mauldin Dept. of Homeland

Security, 08-15078; Mauldin v. Dept. of Homeland Security, 08-15174; Mauldin v. Dept.

of Homeland Security, 08-15299; Mauldin v. Dept. of Homeland Security, 09-10275. One

is pending, but Plaintiff was ordered to pay the filing fee by March 27, 2009. He has not

done so. See Mauldin v. Wayne County Friend of the Court, 09-10539. Two were

2:09-cv-10245-DML-RSW Doc # 5 Filed 04/23/09 Pg 1 of 3 Pg ID 25
-2-

dismissed on the merits. See Mauldin v. Gendreau, 08-13486; Mauldin v. Dept. of

Homeland Security, 08-13392. 

Under Fed.R.Civ.P. 41(b), a district court may sua sponte dismiss a case for failure

to prosecute. Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734

(1962). “[D]ismissal is an appropriate disposition against a party who disregards court

orders and fails to proceed as required by court rules.” United States ex rel. Jimenez v.

Health Net, Inc., 400 F.3d 853, 855 (10th Cir.2005) (citing Nat'l Hockey League v. Metro.

Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)). This

includes the court’s orders to pay filing fees. See Gravitt v. Tyszkiewicz, 14 Fed. Appx.

348, 349 (6th Cir.2001) (citing McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th

Cir.1997)). In the present case, the Plaintiff was clearly warned that dismissal would be

in the cards if he did not pay the filing fee. As was done with the Plaintiff’s other cases in

this Court, this case should therefore be dismissed without prejudice. As Judge Tarnow

stated in Gomez v. Davis, 2007 WL 2953463, *1 (E.D.Mich. 2007):

“This Court's deficiency order clearly stated that Petitioner was required to

submit either the $ 5.00 filing fee or an application to proceed in forma

pauperis. The deficiency order also expressly warned Petitioner that failure

to comply with the order could result in the dismissal of his action. Because

Petitioner failed to pay the filing fee or submit the required application to

proceed in forma pauperis, her petition is subject to dismissal for want of

prosecution.” (Citing Gravitt, supra).

II. RECOMMENDATION

For these reasons, I recommend that Plaintiff’s complaint be DISMISSED

WITHOUT PREJUDICE.

Any objections to this Report and Recommendation must be filed within ten (10)

days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right

2:09-cv-10245-DML-RSW Doc # 5 Filed 04/23/09 Pg 2 of 3 Pg ID 26
-3-

of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard

v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith

v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections.

s/R. Steven Whalen 

UNITED STATES MAGISTRATE JUDGE

Dated: April 23, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or

parties of record by electronic means or U.S. Mail on April 23, 2009.

s/Susan Jefferson 

Case Manager

2:09-cv-10245-DML-RSW Doc # 5 Filed 04/23/09 Pg 3 of 3 Pg ID 27