Opinion
CIV-21-848-F
01-03-2022
DENNIS LEE BOWERSOCK, JR., Plaintiff, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner appearing pro se, filed a complaint alleging violation of his civil rights. (Doc. 1). United States District Judge Stephen P. Friot referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). Based on Plaintiff's failure to pay the initial payment towards his filing fee, the undersigned recommends that the Court dismiss the action without prejudice to the re-filing.
I. Background and Analysis
On October 28, 2021, the court granted Plaintiff leave to proceed without prepayment of the full filing fee (in forma pauperis, “IFP”). (Doc. 8). Under 28 U.S.C. §§ 1914, 1915(b)(1), Plaintiff was still required to pay the $350.00 filing fee in installments, with an initial partial fee payment of $128.99 due on November 18, 2021, before his action could proceed. (Id. at 2). 1
The court advised Plaintiff that “this action will be subject to dismissal without prejudice to re-filing” for failure to make the initial payment. (Id.) The court's records reflect that mail addressed to Plaintiff containing the court's order to pay the initial filing fee was returned as undeliverable on November 29, 2021, marked “return to sender refused unable to forward.” (Doc. 9). Plaintiff's mail was once again returned as undeliverable on December 21, 2021, marked “return to sender not deliverable as addressed unable to forward.” (Doc. 10).
Plaintiff has not submitted a notice of change of address to the Clerk of Court. Plaintiff is responsible for notifying the court of any change of address. See LCvR 5.4(a). Moreover, the court notes that Plaintiff has mailed filings to the court since his initial application (Doc. 6, received Sept. 24, 2021) - using as his return address the same address to which the court sent the order to pay the initial filing fee. “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” LCvR 5.4(a).
To date, Plaintiff has failed to make the initial payment or show cause in writing why he is unable to do so. Thus, the action is subject to dismissal without prejudice to refiling. LCvR 3.4(a); Cosby v. Meadors, 351 F.3d 1324, 1326-33 (10th Cir. 2003) (upholding dismissal of action based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay). See also Kennedy v. Reid, 208 Fed.Appx. 678, 679-80 (10th Cir. 2006) (finding no abuse of discretion in district court's dismissal without prejudice of civil action due to litigant's failure to timely pay initial filing fee); Campanella v. Utah Cty. Jail, 78 Fed.Appx. 72, 73 (10th Cir. 2003) (same). 2
Moreover, pursuant to Federal Rule of Civil Procedure 41(b), if a plaintiff “fails to prosecute or to comply with these rules or a court order, ” the Court may dismiss the action. The Tenth Circuit “ha[s] consistently interpreted Rule 41(b) to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute.” Huggins v. Supreme Court of the United States, 480 Fed.Appx. 915, 916-17 (10th Cir. 2012) (quotations omitted). If the dismissal is without prejudice, the court generally need not follow any “particular procedures” in entering the dismissal order. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009); see also Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed.R.Civ.P. 41(b) without attention to any particular procedures).
Plaintiff's failure to pay the required partial filing fee and/or comply with the court's orders leaves the court unable “to achieve [an] orderly and expeditious” resolution of this action. Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative). As outlined above, the court has provided Plaintiff sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.
II. Recommendation and Notice of Right to Object
Based on the foregoing, the undersigned recommends that the Court DISMISS Plaintiff's action without prejudice to re-filing for his failure to pay the initial partial filing fee. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before January 24, 2022, under 28 U.S.C. § 636(b)(1)(C) 3 and Fed.R.Civ.P. 72(b)(2). The failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in this matter. 4