Opinion
CIV-21-696-HE
01-03-2022
NICKALES MCALISTER, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, has filed a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). United States District Judge Joe Heaton 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 November 23, 2021, the court granted Plaintiff leave to proceed without prepayment of the full filing fee (in forma pauperis, “IFP”). (Doc. 9). 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 $7.48 due on December 14, 2021, before his action could proceed. (Id. at 2). 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.) 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 re-filing. 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).
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 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 Plaintiffs 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) 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.