Opinion
CIV-23-0042-G
02-09-2023
DAVID SAMUEL CRENWELGE, Plaintiff, v. STEPHENS COUNTY, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. BURCELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, appearing pro se, brings this action seeking a writ of mandamus. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be dismissed without prejudice due to Plaintiff's failure to pay the required filing fee and/or comply with this Court's Orders.
Plaintiff initially filed this action on January 11, 2023. Doc. No. 1. At that time, Plaintiff neither paid the required filing fee, nor filed an Application for Leave to Proceed In Forma Pauperis. On January 17, 2023, the Court directed Plaintiff to cure this deficiency no later than February 6, 2023. Doc. No. 3. The Court also provided Plaintiff with a copy of the court-approved in forma pauperis motion. Id. at 2. Additionally, the Court informed Plaintiff that failure to comply with the Court's directive could result in dismissal of this action. Id.
To date, Plaintiff has failed to either pay the filing fee, file an Amended Application for Leave to Proceed In Forma Pauperis, or otherwise respond to the Court's Order. Therefore, the action is subject to dismissal without prejudice to re-filing. LCvR 3.4(a); See, cf., Cosby v. Meadors, 351 F.3d 1324, 1326-33 (10th Cir. 2003) (upholding dismissal of civil rights complaint based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay). See also, cf., 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 § 1983 action due to litigant's failure to timely pay initial filing fee); Campanella v. Utah Cnty. Jail, 78 Fed.Appx. 72, 73 (10th Cir. 2003) (same).
Moreover, pursuant to Fed.R.Civ.P. 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 U.S., 480 Fed.Appx. 915, 916-17 (10th Cir. 2012) (quotations omitted); see also 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.” (quotations omitted)). If the dismissal is without prejudice, the Court generally need not follow any “particular procedures” in entering the dismissal order. Id. at 1236; 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 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.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to pay the filing fee and/or comply with the Court's orders. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by March 1st , 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.