Opinion
CIV-22-302-PRW
02-17-2023
EZEKIEL DAVIS, Plaintiff, v. KEVIN STITT, et al., Defendants.
REPORT & RECOMMENDATION
Plaintiff, appearing pro se, initiated this civil rights action on April 7, 2022. 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. 14, at 10. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to follow the Court's order to pay an initial partial filing fee.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Discussion.
On January 18, 2023, the Court granted Plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915 and ordered him to pay an initial partial filing fee of $5.50, as required by § 1915(b), by February 8, 2023. Id. at 9. The Court warned Plaintiff that his failure to timely pay the initial fee or show cause for his failure would result in the dismissal of this action. Id.
The Clerk of Court mailed the Court's order to Plaintiff's last known address at the Lawton Correctional Facility. Doc. 15, Att. 1. The Postmaster returned the mail as undeliverable to the Court on January 26, 2023. Doc. 15. A Lawton Correctional Facility employee had written a new address on the outside of the returned envelope indicating Plaintiff was “@ NFCC 1605 E Main Sayre, OK 73662.” Id. Att. 1, at 1. The Clerk of Court then remailed the Court's order to Plaintiff at this new address at the Northfork Correctional Center in Sayre, Oklahoma. See staff note (indicating clerk remailed order on January 26, 2023 to 1605 E Main St. Sayre, OK 73662).
Plaintiff has not filed a notice of change of address with the Court as required by this Court's Local Rules. See LCvR5.4(a) (requiring a pro se litigant to notify the Court of any change of address).
Despite twenty-one days elapsing since the Clerk of Court remailed the order to Plaintiff, he has neither paid the initial fee as the Court ordered nor communicated with the Court. And the Court's order has not been returned to the Court as undeliverable. See LCvR5.4(a) (“Papers sent by the court will be deemed delivered if sent to the last known address given to 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). Courts have consistently interpreted this rule to permit sua sponte dismissal. Huggins v. Sup. Ct. of the U.S., 480 Fed.Appx. 915, 916-17 (10th Cir. 2012); 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.” (quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without prejudice, the court may dismiss without attention to the non-exhaustive list of factors that, by contrast, must inform a dismissal with prejudice. AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
Plaintiff appears pro se; still, 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). The undersigned finds that Plaintiff's inaction and failure to pay the initial partial filing fee have left the Court without the ability “to achieve an orderly and expeditious” resolution of this case. 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 concludes, therefore, that dismissal of this action without prejudice to refiling is warranted under Rule 41(b).
The undersigned thus recommends that the Court dismiss this case. See LCvR3.3(e).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this case without prejudice. The Court's adoption of this recommendation will moot Plaintiff's outstanding motion to amend (Doc. 7) and his motion to expedite (Doc. 13).
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before March 10, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that 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. 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 and terminates the referral in this matter.