Opinion
Case No. CIV-18-590-M
08-03-2018
GEORGE CINTROI DAVIS, Plaintiff, v. DEPARTMENT OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, submitted to this Court a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. [Doc. No. 1]. The matter was referred by United States District Judge Vicki Miles-LaGrange for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C).
On June 20, 2018, this Court granted Plaintiff leave to proceed in forma pauperis and directed him to pay an initial partial filing fee of $5.15 on or before July 11, 2018. [Doc. No. 6]. Plaintiff was advised that failure to timely pay the initial partial filing fee could result in the dismissal of this action without prejudice to refiling. Id.
Plaintiff failed to submit his payment, and on July 16, 2018, the Court sua sponte extended Plaintiff's deadline until July 30, 2018. [Doc. No. 7]. Plaintiff was again advised that failure to comply with the terms of the Order could result in dismissal of this action without prejudice to refiling. Id.
The Court file reveals that as of this date, Plaintiff has failed to comply with the Court's previous orders. Plaintiff has not paid the initial partial filing fee, requested an extension of time, or demonstrated good cause for his failure to comply. See 28 U.S.C. § 1914; LCvR 3.2, 3.3 and 3.4. Thus, pursuant to Fed. R. Civ. P. 41(b), this action is subject to dismissal without prejudice to refiling. See id. (authorizing dismissal for failure to prosecute or comply with an order of the court); see also AdvantEdge Business Group v. Thomas E. Mestmaker & Assocs., 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)); Hill v. Fort Leavenworth Disciplinary Barracks, 660 F. App'x 623, 625 (10th Cir. 2016) (affirming the district court's dismissal of a federal prisoner's complaint where he failed to comply with the district court's order "to pay an initial partial filing fee as mandated by the PLRA").
Where, as here, a dismissal is without prejudice, the Court generally need not follow any "particular procedures" in entering the dismissal order. AdvantEdge, 552 F.3d at 1236. Accordingly, Plaintiff's action should be dismissed without prejudice to refiling.
RECOMMENDATION
For the reasons set forth above, it is recommended that Plaintiff's action be dismissed without prejudice.
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 24, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 3rd day of August, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE