Opinion
CIV-21-494-G
06-08-2021
MICHAEL DUANE, Petitioner, v. MICHAEL SIZEMORE, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be dismissed without prejudice due to Petitioner's failure to pay the required filing fee and/or prosecute this action.
Petitioner initially filed this action on May 14, 2021. Doc. No. 1. At that time, Petitioner did not pay the filing fee, nor did he submit a request to proceed in forma pauperis. On May 18, 2021, the Court entered an Order directing Petitioner, no later than June 7, 2021, to either pay the filing fee or submit an Application for Leave to Proceed In Forma Pauperis. Doc. No. 4. The Court also provided Petitioner a copy of the court-approved in forma pauperis motion. Id. Finally, the Court advised Petitioner that failure to comply with the Court's directive could result in dismissal of his action. Id.
To date, Petitioner has failed to pay the filing fee or submit a request to proceed in forma pauperis. Additionally, since Petitioner initiated this action, the Court has sent him two Orders and each of those Orders has been returned to the Court as undeliverable. Doc. Nos. 5, 6. Thus, Petitioner has failed to keep the Court apprised of his current contact information, as required by LCvR 5.4. See, cf., Cosby v. Meadors, 351 F.3d 1324, 1326-33 (10th Cir. 2003) (upholding dismissal of action based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay). See also Kennedy v. Reid, 208 Fed.Appx. 678, 679-80 (10th Cir. 2006) (finding no abuse of discretion in district court's dismissal without prejudice of civil action due to litigant's failure to timely pay initial filing fee); Campanella v. Utah Cty. Jail, 78 Fed.Appx. 72, 73 (10th Cir. 2003) (same).
Moreover, pursuant to Fed.R.Civ.P. 41(b), if a party “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 [party's] failure to prosecute.” Huggins v. Supreme Court of the United States, 480 Fed.Appx. 915, 916-17 (10th Cir. 2012) (quotations omitted); see also 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.” (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., 552 F.3d at 1236; 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).
Petitioner's failure to pay the required filing fee or request to proceed in forma pauperis, keep the Court apprised of his contact information, and/or comply with the Court's Orders 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 Petitioner sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Petitioner's action be dismissed without prejudice based on his failure to pay the required filing fee or request to proceed in forma pauperis, keep the Court apprised of his contact information, and/or comply with the Court's Orders. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by June 28 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.