Opinion
CIV-23-800-R
11-21-2023
DONNA R. BRANDT, Plaintiff, v. TERRACE DICKERSON, et al., Defendants.
REPORT & RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, initiated this action under 42 U.S.C. § 1983 in the Western District of Missouri. Doc. 1.The action was then transferred to this Court, the United States District Court for the Western District of Oklahoma. Doc. 3. United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to follow the Court's orders-specifically, her failure to timely supplement her in forma pauperis application.
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.
After Plaintiff's action was transferred to this Court, Plaintiff applied to proceed in forma pauperis under 28 U.S.C. § 1915. Doc. 7. 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 initial in forma pauperis application was filed on the incorrect form, lacked an institutional accounts statement, and was not signed by an authorized prison official. Doc. 7; see 28 U.S.C. § 1915(a)(2). The Court ordered Plaintiff to cure these deficiencies. Doc. 9. Plaintiff then filed another in forma pauperis application. Doc. 10. Although this application was on the correct form, it was missing “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the [six]-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). The Court informed Plaintiff that it required a six-month account statement to verify the prison official's calculations. Doc. 11. The Court ordered Plaintiff to supplement her application with this account statement by November 9, 2023. Id. To date, Plaintiff has not responded to the Court's order.
The Clerk of Court mailed a copy of the order to the address Plaintiff had provided the Court. Under Local Civil Rule 5.4, it is a pro se litigant's responsibility to notify the court and opposing parties of any change of address. LCvR5.4(a). “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id. Further, there is no indication the order went undelivered as it has not been returned to the Clerk of Court as undeliverable.
Under Rule 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 she 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 supplement her in forma pauperis application 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).
The undersigned thus recommends that the Court dismiss this case. See LCvR3.3(e).
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 her right to file an objection to this report and recommendation with the Clerk of this Court on or before December 12, 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.
SO ORDERED