Opinion
CIV-23-1035-G
12-13-2023
TAUFANO C.T. GUYTON, Plaintiff, v. FNU DIAZ, et al., Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, filed an action alleging violation(s) of his civil rights. (Doc. 1). United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). For the reasons set forth below, the undersigned recommends that the court DISMISS this action without prejudice to the re-filing.
I. Background and Analysis
Plaintiff filed this action on October 31, 2023. (Doc. 1, at 11). He failed to file an application to proceed in forma pauperis or to pay the filing fee. On November 16, 2023, the court ordered Plaintiff to cure these deficiencies on or before December 7, 2023. (Doc. 4, at 1-2). Plaintiff was warned 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 provide the court with an application to proceed in forma pauperis or to pay the filing fee, as ordered. Furthermore, he has failed to show good cause for his failure to do so, or to request an extension of time to comply with the court's order. The court's records reflect that mail addressed to Plaintiff was returned as undeliverable on November 28, 2023, (Doc. 5), and November 30, 2023, (Doc. 6), marked “return to sender; not deliverable as addressed; unable to forward.” Plaintiff is responsible for notifying the court of any change of address, see LCvR 5.4(a), and “[p]apers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id.
Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order.” See also Huggins v. Supreme Court of the United States, 480 Fed.Appx. 915, 916-17 (10th Cir. 2012) (recognizing court's authority to dismiss actions sua sponte under Rule 41(b)). 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). Failure to comply with court orders leaves the court unable “to achieve orderly and expeditious” resolutions to the actions before it. 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); see also Rogers v. Ganja, 47 Fed.Appx. 900, 901 (10th Cir. 2002) (“Since [Plaintiff] received proper notice of the IFP requirements and sufficient time to cure, the district court did not abuse its discretion in dismissing the complaint without prejudice.”).
Therefore, in light of the court's right and responsibility to manage its cases, the undersigned finds that Plaintiff's failure to comply with the court's order warrants dismissal of this action without prejudice. 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.
II. Recommendation and Notice of Right to Object
For these reasons, the undersigned recommends that this action be DISMISSED without prejudice to the re-filing for Plaintiff's failure to comply with the court's order. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by January 3, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make 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 unless and until the matter is re-referred.