Opinion
Case No. CIV-18-693-D
09-28-2018
ELGRET BURDEX, Plaintiff, v. PHILLIP SMITH, et al., Defendants.
REPORT AND RECOMMENDATION
Using a form pro se prisoner civil rights complaint, Elgret Burdex (Plaintiff), appearing pro se, brought this action for relief under 42 U.S.C. § 1983. See Doc. 1. United States District Judge Timothy D. DeGiusti then referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4.
When prompted by the form complaint to identify his custody status, Plaintiff explained it as "Grady County fines & cost . . . ." Doc. 1, at 4. The Grady County Law Enforcement Center is located at the address Plaintiff listed. See id. at 5; see also http://www .gclec.com .
Because Plaintiff appears pro se, the undersigned liberally construes his filings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
Citations to a court document are to its electronic case filing designation and pagination. The undersigned alters Plaintiff's use of the uppercase but otherwise quotes him verbatim.
On August 20, 2018, Plaintiff applied for leave to proceed in forma pauperis (ifp). See Doc. 10. The following day, the undersigned granted Plaintiff ifp status but ordered that he pay a $15.00 initial partial filing fee by September 17, 2018. See id. The undersigned specifically advised Plaintiff that, unless by the stated deadline he had either paid his $15.00 initial partial filing fee or had shown cause in writing for his failure to do so, his case would be subject to dismissal. Id. at 2-3. And, the undersigned specifically advised him that this would happen "without further warning." Id. at 2. The court's records confirm that the Clerk of Court promptly delivered that Order to Plaintiff at his last known address, see Aug. 21, 2018 docket entry, the same address at which he had, necessarily, received prior orders. See Docs. 5, 8, 9, & 10.
And Plaintiff knew that it was his obligation to notify the court of any change of address. See July 18, 2018 docket entry. --------
To date, however, Plaintiff has not paid the initial partial filing fee as ordered and he has not shown—or made any attempt to show—cause for nonpayment. He has not communicated with the court since filing his application for leave to proceed ifp on August 20, 2018. See Doc. 10. Dismissal of his action without prejudice to refiling is warranted under Fed. R. Civ. P. 41(b). See Hill v. Fort Leavenworth Disciplinary Barracks, 660 F. App'x 623, 625 (10th Cir. 2016) (holding the district court did not abuse its discretion in dismissing an action without prejudice when, "[d]espite warnings from the district court, [Plaintiff] failed to pay the statutorily mandated filing fee and failed to otherwise establish his inability to pay").
Recommendation and Notice of Right to Object
For the stated reasons, the undersigned recommends the dismissal of Plaintiff's action under Fed. R. Civ. P. 41(b), without prejudice to refiling.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before October 19, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 28th day of September, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE