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 lawsuit filed by Eric S. Upchurch, II without prejudice — meaning it can potentially be refiled — because the complaint failed to state a legal claim, and ordered Upchurch to pay the remaining $339.72 court filing fee.
Eric S. Upchurch, II, an apparently incarcerated individual who brought this lawsuit and will be required to pay a $339.72 filing fee from his prison account despite the dismissal of his case.
What happened
In Upchurch v. Dr. Vittorio (File No. 25-cv-4630), Eric S. Upchurch, II, a person who appears to be incarcerated, filed a lawsuit against Dr. Vittorio. Magistrate Judge Dulce J. Foster reviewed the case and issued a Report and Recommendation on February 13, 2026, concluding that the complaint should be dismissed. No party objected to that recommendation.
Because no objections were filed, the court reviewed the recommendation only for clear error — a limited form of review. The court found none. Upchurch had also asked the court to let him proceed without paying the filing fee upfront (known as an 'in forma pauperis' application) and had filed a motion asking the court to appoint him a lawyer.
Judge Tostrud accepted the Magistrate Judge's Report and Recommendation and dismissed the complaint without prejudice, meaning Upchurch is not permanently barred from refiling if he can correct the deficiencies. Because the case was dismissed, the requests to waive the filing fee and to appoint counsel were denied as moot (meaning they no longer needed to be decided). However, Upchurch is still required to pay the remaining $339.72 filing fee under federal law governing prisoner litigation, and the Clerk of Court must notify the institution where he is held of this obligation.
The detailed version
Case: Eric S. Upchurch, II v. Dr. Vittorio, File No. 25-cv-4630 (ECT/DJF), United States District Court, District of Minnesota. Presiding District Judge: Eric C. Tostrud. Magistrate Judge: Dulce J. Foster.
Background: Plaintiff Eric S. Upchurch, II filed a complaint (ECF No. 1) against a defendant identified as Dr. Vittorio. Upchurch appears to be a prisoner based on the court's invocation of 28 U.S.C. § 1915(b)(2), the Prison Litigation Reform Act's filing fee provision, which requires incarcerated plaintiffs to pay filing fees in installments from their prison accounts even when proceeding without full prepayment. He also filed a motion to appoint counsel (ECF No. 2) and an in forma pauperis (IFP) application (ECF No. 6), which is a request to proceed without paying the filing fee upfront.
Magistrate Judge's Report and Recommendation: On February 13, 2026, Magistrate Judge Foster issued a Report and Recommendation (ECF No. 10) recommending dismissal of the complaint for failure to state a claim upon which relief may be granted — the standard under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii), which allows courts to screen prisoner complaints sua sponte. The opinion does not describe the underlying facts of the complaint or the specific deficiencies identified.
Review Standard: Because no party objected to the Report and Recommendation within the applicable period, Judge Tostrud reviewed it only for clear error, citing Federal Rule of Civil Procedure 72(b) and Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996). Finding no clear error, the court accepted the recommendation in full.
Rulings:
- The Report and Recommendation (ECF No. 10) was accepted.
- The complaint (ECF No. 1) was dismissed without prejudice for failure to state a claim, meaning Upchurch may potentially refile if he can cure the identified deficiencies.
- The IFP application (ECF No. 6) was denied as moot.
- The Motion to Appoint Counsel (ECF No. 2) was denied as moot.
- Upchurch was ordered to pay the unpaid balance of the statutory filing fee — $339.72 — pursuant to 28 U.S.C. § 1915(b)(2), which requires prisoners to pay filing fees in installments from their institutional accounts regardless of the outcome of the case. The Clerk of Court was directed to notify the authorities at the institution where Upchurch is confined.
Judgment was ordered to be entered accordingly. Dated March 24, 2026, signed by District Judge Eric C. Tostrud.
Reviewer note from the AI+
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.