Opinion
CIV-22-965-JD
09-20-2023
SYLVESTER KIMBLE, Plaintiff, v. LT. FNU RUSSELL, et al., Defendants.
REPORT & RECOMMENDATION
SUZANNE MITCHELL JUDGE.
Plaintiff, appearing pro se, initiated this civil rights action on November 8, 2022. Doc. 1.United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Docs. 4, 14. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to follow the Court's orders and the local rules.
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.
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 $2.96, as required by § 1915(b), by November 30, 2022. Doc. 5. He did so out-of-time on February 6, 2023. Doc. 12.
On August 24, 2023, the Court re-referred this matter to the undersigned and ordered Plaintiff to update his address by September 14, 2023. Docs. 13, 14. The Court warned Plaintiff that his “failure to comply with the Court's Order, and failure to follow federal and local civil rules, may result in a dismissal of this action without prejudice, which may operate as a dismissal with prejudice or bar some or all of Plaintiff's claims.” Doc. 13, at 1-2.
The Clerk of Court mailed copies of the orders, along with a change of address form, to Plaintiff's last known address. This Court's local rules require a pro se litigant to advise the Court of the litigant's current address and contact information. See LCvR5.4 (“All papers shall contain the name [and] mailing address . . . of the . . . pro se litigant. If any of this information changes, the . . . pro se litigant must notify the court by filing the form provided by the clerk.”) “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id.
On September 7, 2023, the post office returned the Court's orders to the Clerk of Court as undeliverable with no forwarding address. Doc. 15. Plaintiff has not communicated with the Court since February 1, 2023. And, as of this date, he has failed to keep the Court informed of his current address or respond to the Court's orders.
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 follow the Court's orders and the local rules 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).
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 undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before October 11, 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 in this matter.