Opinion
Case No. CIV-20-952-PRW
10-28-2020
ANTHONY LEE PITT, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
On September 21, 2020, Petitioner, appearing pro se, initiated the present action. Doc. 1. United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. For the following reasons, the undersigned recommends dismissal of this action without prejudice based on Petitioner's failure to prosecute.
I. Discussion.
Upon initiation of his suit, Petitioner neither submitted the filing fee nor applied to proceed in forma pauperis. The undersigned ordered Petitioner to cure this deficiency by either remitting the fee or filing an IFP application by October 8, 2020. Doc. 4.
The Clerk of Court mailed Petitioner the order and the necessary IFP form to the address Petitioner 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").
The undersigned warned Petitioner that his failure to timely comply with the order would result in the undersigned recommending dismissal of this action. Doc. 4, at 1. Petitioner has not timely responded to the Court's order to cure, requested an extension of time to do so, or otherwise communicated with the Court.
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 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.
Petitioner 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). Petitioner has not communicated with the Court. He has also failed to properly apply for IFP status and has not paid the filing fee for his action despite the undersigned's warning that his action could be dismissed.
The undersigned finds that Petitioner'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). The undersigned duly warned Petitioner of the consequences of failing to cure his filing deficiencies. 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 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").
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 Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before November 18, 2020, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the Petitioner 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 28th day of October, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE