Opinion
CIV-23-824-R
11-28-2023
LARRY CHANEY, Plaintiff, v. KEVIN STITT, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, MAGISTRATE JUDGE.
Plaintiff, a state prisoner appearing pro se, filed a Complaint alleging violation of his civil rights. (Doc. 1). United States District Judge David L. Russell 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 cure his in forma pauperis motion, or in the alternative to pay the filing fee, the undersigned recommends that the Court DISMISS the action without prejudice to the re-filing.
Plaintiff attached to his Complaint an Affidavit in Forma Pauperis on a form used by another jurisdiction. (Doc. 1, at 12). On September 25, 2023, the court ordered Plaintiff to: (1) file a motion to proceed in forma pauperis (“IFP Application,” a motion to proceed without prepayment of fees and costs) on the proper form; (2) include the required financial information and signature; and (3) attach the required institutional account statements. (Doc. 5). Plaintiff was ordered to cure these deficiencies on or before October 16, 2023. (Id. at 2). The Clerk of Court sent Plaintiff the necessary forms to comply with the order. (Id.) On October 12, 2023, Plaintiff filed an IFP Application on the proper form and included the necessary financial information, but he failed to attach the required institutional account statements. (Doc. 6). The court ordered Plaintiff to cure this deficiency by November 22, 2023. (Doc. 7). The order warned Plaintiff that “[f]ailure to comply with this Order may result in the dismissal of this action.” (Id. at 2). To date, Plaintiff has failed to cure the deficiency by submitting the proper institutional account statements to his IFP Application or to pay the filing fee, as ordered.
Pursuant to Federal Rule of Civil Procedure 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 cure his IFP Application or to pay the filing fee 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. Thus, considering the Court's right and responsibility to manage its cases, the undersigned finds that Plaintiff's failure to comply with the Court's Order (Doc. 7) warrants a recommendation that the Court DISMISS this action without prejudice to the re-filing.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 19, 2023, 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 and terminates the referral.
IT IS SO ORDERED.