Opinion
CIV-23-180-PRW
03-28-2023
JOSHUA C. ARNETT, Plaintiff, v. STATE OF OKLAHOMA et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pretrial detainee appearing pro se, initiated this action on February 21, 2023. 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. 4. For the following reasons, the undersigned recommends the denial of Plaintiff's “motion to waive fees” and the dismissal of this action without prejudice unless Plaintiff pays the 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.
Upon initiation of this suit, Plaintiff filed a complaint seeking “monetary relief,” and a “motion to waive fees.” Docs. 1-2. The filing fee in civil cases is $402.00.
The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $52.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
Plaintiff's complaint was not on the proper form. His motion to waive fees was also not on the proper form and lacked both a certified copy of his institutional accounts statement and the signature of an authorized jail official. See 28 U.S.C. § 1915(a). This information is required for the Court to properly assess an in forma pauperis (IFP) application. See 28 U.S.C.A. § 1915(a)(2) (“A prisoner seeking to bring a civil action . . . without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . ., obtained from the appropriate official of each prison at which the prisoner is or was confined.”).
The Court ordered Plaintiff to cure the deficiencies in his complaint and his IFP application by March 20, 2023. Doc. 5. To assist Plaintiff in complying with the Court's order, the Clerk of Court sent Plaintiff a Pro Se Civil Rights Complaint form and an IFP application form to Plaintiff's last known address. Id. at 2; see LCvR5.4(a) (“Papers sent by the court will be deemed delivered if sent to the last known address given to the court.”). On March 13, 2023, Plaintiff filed an amended complaint on the form the Clerk of Court had provided to him. Doc. 6. He has not, however, filed an amended IFP application or requested an extension of time to do so.
Plaintiff appears pro se but 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). Plaintiff has submitted an insufficient IFP application and has failed to follow the Court's order to cure it. Due to Plaintiff's inaction and failure to comply with the Court's order, the undersigned cannot properly resolve his motion to proceed IFP in his favor. The undersigned therefore recommends that the Court deny Plaintiff's “motion to waive fees” and dismiss this action without prejudice unless Plaintiff pays the filing fee in full within twenty-one days of the Court's Order adopting this Report and Recommendation. See LCvR3.3(e) (“In the event the application is denied, the filing party shall have 21 days, unless a different time is specified by the court, within which to pay the required filing fees.”); see also Fed.R.Civ.P. 41(b) (instructing that a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order”).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court deny Plaintiff's motion to waive fees (Doc. 2) and dismiss this case without prejudice unless Plaintiff timely pays the filing fee in full.
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 April 18, 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.