Opinion
CIV-21-992-G
01-06-2022
OTIS MAYS, Plaintiff, v. GRADY COUNTY LAW ENFORCEMENT CENTER, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a complaint seeking relief under 42 U.S.C. § 1983. Doc. 1.United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 8. Based on Plaintiff's failure to timely pay his initial partial filing fee as ordered, the undersigned recommends that the Court dismiss the action without prejudice.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
On November 17, 2021, the Court granted Plaintiff leave to proceed without prepayment of the full filing. Doc. 14. Pursuant to 28 U.S.C. §§ 1914 and 1915(b)(1), Plaintiff still had to pay the full $350.00 filing fee, with an initial partial payment of $16.10 due on December 8, 2021, before his action could proceed. See Doc. 14, at 1. The Court advised Plaintiff that his case was subject to dismissal without prejudice to refiling if he failed to make the initial payment. Id. at 1-2. The Court further advised Plaintiff that if he wanted to avoid incurring any fees or costs he could voluntarily dismiss his action by that same date. Id. at 2.
Plaintiff sought and the Court granted him an extension of time to pay the initial partial fee. Doc. 19. After the Court granted him the extension, Plaintiff's payment was due by December 27, 2021. Id. The Court again advised Plaintiff that his failure to timely comply with the Court's order could result in the dismissal of his action. Id.
The Clerk of Court mailed a copy of the order to the address Plaintiff had provided the Court. Under Local Civil Rule 5.4, “[p]apers sent by the court will be deemed delivered if sent to the last known address given to the court, ” as it is a pro se litigant's responsibility to notify the court and opposing parties of any change of address. LCvR5.4(a). There is no indication the Court's order went undelivered as the postal service has not returned it to the Clerk of Court as undeliverable.
As of this date, Plaintiff has neither paid his initial partial filing fee nor moved for another extension of time to do so. 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.'” 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.
Proceeding in forma pauperis (IFP) “in a civil case is a privilege, not a right-fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). Plaintiff 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).
The undersigned finds that Plaintiff's inaction and failure to comply with the Court's orders to pay 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).
Accordingly, the undersigned recommends that the Court dismiss this case without prejudice and deny Plaintiffs pending motion to preserve jail recordings as moot, Doc. 16, unless Plaintiff pays $16.10 within twenty-one days of any order adopting this Report and Recommendation. See LCvR3.3(e) (“Failure to pay the filing fees by the date specified, to seek a timely extension within which to make the payment, or to show cause in writing by the date specified for payment shall be cause for dismissal of the action without prejudice to refiling.”).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before January 27, 2022, under 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. 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.
IT IS SO ORDERED.