Opinion
Case No. CIV-18-585-M
08-06-2018
GEORGE CINTROI DAVIS, Plaintiff, v. DAVID PRATER, et al., Defendants.
REPORT AND RECOMMENDATION
George Davis (Plaintiff), a state prisoner appearing pro se, brought this action seeking relief under 42 U.S.C. § 1983. See Doc. 1. United States District Judge Vicki Miles-LaGrange then referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5.
Citations to a court document are to its electronic case filing designation and pagination.
The undersigned promptly notified Plaintiff that his Application for Leave to Proceed in Forma Pauperis and supporting affidavit (Application), see Doc. 2, was deficient. See Doc. 6. The undersigned advised Plaintiff that because he had initiated his civil rights action in this Court on June 15, 2018, see Doc. 1, he was required to obtain and submit a certified copy of his trust account statements (or the institutional equivalent) from the appropriate official of each penal institution or jail at which he is or was confined from mid-December 2017 through mid-June 2018. See Doc. 6 (citing 28 U.S.C. § 1915(a)(2)). The undersigned ordered Plaintiff to cure the deficiency on or before July 9, 2018, and cautioned that his failure to comply with the order would likely result in the recommended dismissal of this action. See id. at 2.
The undersigned also informed Plaintiff that his declaration—made under penalty of perjury—that he placed his complaint in the legal mail system of the John H. Lilley Correctional Center—located in Boley, Oklahoma, 74829—on "5-15-18", Doc. 1, at 4, 10, was belied by the fact that the complaint did not arrive in this Court until June 15, 2018, in an envelope with postage paid in Oklahoma City, Oklahoma, 73114, on June 14, 2018. Doc. 6, at 2 n.2.
The undersigned directed the Clerk of Court to send any form necessary for compliance. See Doc. 6, at 2 n.3.
Plaintiff failed to comply with that Order, and the undersigned then sua sponte extended his time to cure the stated deficiency until July 30, 2018. See Doc. 7, at 2. The undersigned specifically warned that: "If Plaintiff fails to do so, the undersigned, without additional notice, will recommend the dismissal of this action without prejudice to refiling." Id. (emphasis omitted).
And, "[o]nce again, the undersigned direct[ed] the Clerk of Court to send any form necessary for compliance." Doc. 7, at 2. --------
To date, however, Plaintiff has neither complied nor shown good cause for his failure to do so. After filing his complaint and deficient Application on June 15, 2018, Plaintiff simply stopped communicating with the court. Plaintiff's failure to comply with court orders, together with a court's right and responsibility to manage and control its caseload, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (noting the court applies Fed. R. Civ. P. 41(b) to allow sua sponte dismissal for "failure to . . . comply with the rules of civil procedures or court's orders").
Recommendation and Notice of Right to Object
For the stated reasons, the undersigned recommends the dismissal of Plaintiff's action under Fed. R. Civ. P. 41(b), without prejudice to refiling. Adoption of this recommendation will moot Plaintiff's pending Application, Doc. 2.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before August 27, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 6th day of August, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE