Opinion
Case No. CIV-19-1089-D
01-14-2020
ELGRET L. BURDEX, Plaintiff, v. PHILIP SMITH, et al., Defendants.
REPORT AND RECOMMENDATION
On November 20, 2019, Plaintiff, appearing pro se, initiated the present action under 42 U.S.C. § 1983 while he was incarcerated in the Grady County Jail. Doc. 1. Chief United States District Court Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). For the following reasons, the undersigned recommends dismissal of this action based on Plaintiff's failure to prosecute.
I. Discussion.
At the time Plaintiff submitted his complaint he was an inmate at the Grady County Jail. Doc. 1. Consistent with Plaintiff's pro se status, the Clerk of Court promptly provided him with a change of address form along with a copy of LCvR5.4, this Court's Local Civil Rule that requires, in part, a pro se litigant who has a change of mailing address to "notify the court by filing the form provided by the clerk" and warns that "[p]apers sent by the court will be deemed delivered if sent to the last known address given to the court." LCvR5.4(a). There is no indication this correspondence went undelivered as it was not returned to the court. Plaintiff has never updated his address with the court.
On January 2, 2020, the court ordered Plaintiff to provide further information regarding his alleged in forma pauperis status and to file a notice of change of address with the court. Doc. 6. The Clerk of Court sent the order to Plaintiff's last known address provided to the court. See LCvR5.4(a). Plaintiff never responded and the court's order was returned to the court with the notation "Not in Grady County Jail Return to Sender." Doc. 7.
See http://www .gclec.com:81/364F0001/jailwebip.html (no longer listing Plaintiff as an inmate on the Grady County Jail log as of December 27, 2019). --------
Under Fed. R. Civ. P. 41(b), the court may dismiss an action if the plaintiff "fails to prosecute or to comply with these rules or a court order[.]" Fed. R. Civ. P. 41(b); see also Huggins v. Supreme Court of the U.S., 480 F. App'x 915, 916-17 (10th Cir. 2012) (noting that Rule 41(b) has been "consistently interpreted . . . to permit courts to dismiss actions sua sponte . . . ." (citation omitted)); AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) ("'A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules.'" (citation omitted)). And, if dismissal is without prejudice, the court may dismiss without first considering a "non-exhaustive list of factors." AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
Plaintiff appears pro se; nonetheless, he must follow the same rules as any other litigant. See Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). Plaintiff has not notified the court of his change in address despite being released from the Grady County Jail months ago. He has also failed to update his in forma pauperis status, has not paid the filing fee for his action, and has ceased communication with the court.
The undersigned finds that Plaintiff's inaction and failure to comply with the undersigned's orders and the court's rules have left the court without the ability "to achieve an orderly and expeditious" resolution of the action. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution). Accordingly, the undersigned recommends that the court dismiss this case without prejudice.
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends that the court dismiss the case without prejudice. The court's adoption of this recommendation will moot Plaintiff's motion for leave to proceed in forma pauperis. Doc. 2.
The undersigned advises the Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before February 4, 2020, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the Plaintiff that failure to make a timely objection to the report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.
ENTERED this 14th day of January, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE