Opinion
CIV-23-587-JD
08-03-2023
STEVEN MONTRAIL TRIPLET, Plaintiffs, v. TIMOTHY HENDERSON et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff has filed an Application to Proceed in District Court without Prepaying Fees or Costs (Motion) (ECF No. 2) in conformance with 28 U.S.C. § 1915. Pursuant to the procedures of this Court the motion was reviewed by the undersigned. Following that review, the Motion was found to be deficient and an Order to Cure Deficiencies was entered. See ECF No. 4.
The undersigned found that the Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF No. 2) was incomplete. Plaintiff was Ordered to submit a proper Application (motion) to Proceed in District Court Without Prepaying Fees or Costs on or before July 31, 2023. Plaintiff was provided the necessary paperwork. See ECF No. 4 and Staff notes dated 7/14/2023.
Despite Plaintiff's filing on July 17, 2023 of documents entered as Certificate of Service (ECF No. 5), a review of the Court file indicates that as of this date, the Plaintiff has failed to cure the deficiencies, show good cause for his failure to do so, or request an extension of time to comply with the Court's order. Further, there is no indication from the docket that Plaintiff did not receive the Court's previous Order which was mailed to Plaintiff's address of record. See Id; LCvR 5.4(a).
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Because Plaintiff has failed to comply with this Court's Order, it is recommended that his Motion (ECF No. 2) be DENIED and that he be ordered to prepay the full $402.00 filing fee for this action to proceed. 28 U.S.C. § 1915(a)(1). Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (magistrate judge should issue a report and recommendation when denying motion to proceed in forma pauperis.).
It is further recommended that this action be dismissed unless Plaintiff pays the $402.00 filing fee in full to the Clerk of the Court within twenty (20) days of any order adopting this Report and Recommendation.
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by August 21, 2023 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).