Opinion
CIV-21-228-R
05-10-2021
SALVADOR PEREZ, JR., Plaintiff, v. P. STUCKEY, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.
On March 16, 2021, Plaintiff, an Oklahoma prisoner appearing pro se, initiated the present action. Doc. 1. United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. For the following reasons, the undersigned recommends dismissal of this action without prejudice based on Plaintiff's failure to prosecute.
I. Discussion.
Upon initiation of his suit, Plaintiff filed a deficient complaint and application to proceed in forma pauperis (IFP). See Docs. 1, 2. The undersigned ordered Plaintiff to cure his deficient filings by submitting a proper complaint and a motion to proceed IFP by April 5, 2021. Doc. 6. Plaintiff filed his complaint and a motion for leave to proceed IFP on March 31, 2021. See Docs. 7, 8. The Court granted the IFP motion on April 5, 2021. Doc. 9. In the Order granting the application, the Court instructed Plaintiff to make an initial payment of $50.00 by April 26, 2021. Id. at 1-2. Additionally, the Court warned Plaintiff that a failure to timely pay or show cause in writing for his failure to pay would result in the Court recommending dismissal of the action. Id.
The Clerk of Court mailed Plaintiff the Order to the address Plaintiff had provided to the Court. There is no indication this correspondence went undelivered as it was not returned to the Court. See LCvR5.4(a) (warning that “[p]apers sent by the court will be deemed delivered if sent to the last known address given to the court”). As of this date, Plaintiff has not timely responded to the Court's Order to pay or requested an extension of time to do so. Instead, Plaintiff has sent a letter to the Court asking to add a “missing” page to his complaint and has moved to dismiss some but not all defendants from his suit. See Docs. 10, 11. Plaintiff has not communicated with the Court concerning his obligation to pay through these documents.
Under Fed.R.Civ.P. 41(b), a 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 Fed.Appx. 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 communicated with the Court concerning his obligation to pay. He has failed to pay the initial partial filing fee for his action despite the Court's warning that his action could be dismissed for failing to timely comply with the Court's order to pay.
The undersigned finds that Plaintiff's inaction and failure to comply with the undersigned's order 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). The undersigned duly warned Plaintiff of the consequences of failing to pay. The undersigned concludes, therefore, that dismissal of this action without prejudice to refiling is warranted under Rule 41(b). See, e.g., Hill v. Fort Leavenworth Disciplinary Barracks, 660 Fed.Appx. 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”).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends that the Court dismiss this case without prejudice.
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 June 1, 2021, 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.