Opinion
CIV-21-953-PRW
10-26-2021
WILLIAM M.A. DECORY, Plaintiff, v. LT. O. LANEY, et al, Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner appearing pro se, has filed this action under 42 U.S.C. § 1983 alleging various violations of his constitutional rights. United States District Judge Patrick R. Wyrick has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
In accordance with that referral, the undersigned found that the Plaintiff's Complaint was not on the proper form and that Plaintiff had neither paid the filing nor presented a Motion to Proceed In Forma Pauperis. By Order (ECF No. 4) the Court directed the Plaintiff to cure these deficiencies on or before October 18, 2021. Plaintiff was provided the necessary forms and was further advised that failure to comply with the Order would result in a recommendation of dismissal of this action without prejudice and without further notice. See Id. and Staff notes dated 09/30/2021.
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. Plaintiff has however, filed 3 Notices and 1 Motion for Order. See ECF Nos. 5-8. With the exception of Notice (ECF No. 5) Plaintiff's filings to do not relate to the deficiencies identified in the Court's Order (ECF No. 4). Although the Notice (ECF No. 5) includes 2 pages from an application to proceed in forma pauperis, the information contained in these pages remains deficient. 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 ECF No. 4 and Staff notes dated 09/30/2021; LCvR 5.4. (a).
THEREFORE, the undersigned finds that Plaintiff's failure to comply with the Court's Order, in light of the Court's right and responsibility to manage its cases, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe County Justice Center, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (sua sponte dismissal for failure to comply with Court's orders permitted under federal rules, and court need not follow any particular procedures in dismissing actions without prejudice for failure to comply).
RECOMMENDATION
Based on the foregoing findings, it is recommended that this action be DISMISSED without prejudice for Plaintiff's failure to comply with this Court's orders. Adoption of this recommendation will moot Plaintiff's Motion for Order (ECF No. 6). Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by November 12, 2021, 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).
This Report and Recommendation terminates the referral in the captioned matter.