Opinion
CIV-22-965-JD
01-09-2023
SYLVESTER KIMBLE, Plaintiff, v. LT. FNU RUSSELL, et al., Defendants.
REPORT & RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, initiated this civil rights action on November 8, 2022. Doc. 1.United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to follow the Court's order to pay an initial partial filing fee.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Discussion.
The Court granted Plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915 and ordered him to pay an initial partial filing fee of $2.96, as required by § 1915(b), by November 30, 2022. Doc. 5. The Court warned Plaintiff that his failure to timely pay the initial fee or show cause for his failure would result in the Court recommending dismissal of this action. Id. at 1-2.
Plaintiff later filed a letter expressing an inability to pay the initial filing fee due to his transfer to another facility. Doc. 7. Construing that letter as a motion for an extension of time, the Court gave Plaintiff until December 30, 2022, to pay the fee. Doc. 8. The Clerk of Court mailed a copy of the order to the updated address Plaintiff had provided the Court. See Doc. 6. “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” LCvR5.4(a).
To date, Plaintiff has not paid the initial fee or otherwise communicated with the Court. But there is no indication Plaintiff did not receive the Court's extension order as the Postmaster has not returned any undelivered mail to the Court.
Under Fed.R.Civ.P. 41(b), a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). Courts have consistently interpreted this rule to permit sua sponte dismissal. Huggins v. Sup. Ct. of the U.S., 480 Fed.Appx. 915, 916-17 (10th Cir. 2012); 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.” (quoting Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without prejudice, the court may dismiss without attention to the non-exhaustive list of factors that, by contrast, must inform a dismissal with prejudice. AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
Plaintiff appears pro se; still, he must follow the same rules as any other litigant. See Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). The undersigned finds that Plaintiff's inaction and failure to pay the initial partial filing fee have left the Court without the ability “to achieve an orderly and expeditious” resolution of this case. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution). The undersigned concludes, therefore, that dismissal of this action without prejudice to refiling is warranted under Rule 41(b).
The undersigned thus recommends that the Court dismiss this case. See LCvR3.3(e).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this case without prejudice.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before January 30, 2023, in accordance with 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. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.