Opinion
23-3261-JWL
04-30-2024
RONALD WEST, Plaintiff, v. FNU HUSHSON, USP-Leavenworth Warden, aka fnu Hudson, Defendant.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
Plaintiff proceeds pro se in this civil rights action. At the time of filing, Plaintiff was incarcerated at USP-Leavenworth in Leavenworth, Kansas. Plaintiff is now housed at FCI Hazelton in Bruceton Mills, West Virginia. On December 28, 2023, the Court entered a Notice of Deficiency (Doc. 2), finding that Plaintiff's Complaint was not on the Court-approved form and Plaintiff failed to either pay the filing fee or submit a motion for leave to proceed in forma pauperis. The Court granted Plaintiff until January 29, 2024, to cure the deficiencies. The Court granted Plaintiff's motion for an extension of time, and extended the deadline to February 28, 2024. (Doc. 4.) Plaintiff filed a second Motion for Extension of Time (Doc. 5), which the Court granted on February 9, 2024 (Doc. 6). The Court extended the deadline to comply with the NOD to March 29, 2024. Plaintiff filed another motion for extension of time, and on March 25, 2024, the Court entered an Order (Doc. 18) granting Plaintiff an extension of time until April 29, 2024, to comply with the Court's NOD. Plaintiff has now filed a “Motion for the Court to Consider” (Doc. 19).
The Court's order provided that “[f]ailure to comply by the Court's deadline may result in dismissal of this action without prejudice and without prior notice.” (Doc. 18, at 2.) Plaintiff has failed to comply with the Court's NOD by the deadline, and instead has filed a motion (Doc. 19). Plaintiff states in his motion that “[a]t this time, the Plaintiffs are waiting on the defendants to consider and make another settlement offer on the claims filed by all Plaintiffs on the civil law suit that the Plaintiffs are about to file in the District Court for Kansas.” (Doc. 19, at 1-2) (cleaned up). Plaintiff then states that he “will pay the filing fee on the civil suit once the defendants make another offer that is not what the Plaintiffs want.” Id. at 2. Plaintiff asks the Court to consider giving him another extension of time to comply with the NOD.
Under 28 U.S.C. § 1914(a), “the plaintiff must ordinarily prepay the filing fee” unless he or she is granted leave to proceed in forma pauperis. Hoffmeister v. United Student Aid Funds, Inc., 818 Fed.Appx. 802, 805 (10th Cir. 2020) (unpublished); see also 28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties instituting any civil action . . . in such court . . . to pay a filing fee ....” (emphasis added)). Therefore, the filing fee is due when a case is filed, not at some later point when a plaintiff determines that settlement will be unsuccessful.
Plaintiff filed this case on December 28, 2023. To date, he has failed to comply with the Court's NOD by either paying the filing fee or submitting a motion for leave to proceed in forma pauperis. Plaintiff has also failed to submit his Complaint on a court-approved form as ordered in the NOD. Plaintiff has been warned multiple times that failure to comply may result in the dismissal of this action. See Docs. 2, 4, 6, 8, 13, and 18.
Rule 41(b) of the Federal Rules of Civil Procedure “authorizes a district court, upon a defendant's motion, to order the dismissal of an action for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or ‘a court order.'” Young v. U.S., 316 Fed.Appx. 764, 771 (10th Cir. 2009) (citing Fed.R.Civ.P. 41(b)). “This rule has been interpreted as permitting district courts to dismiss actions sua sponte when one of these conditions is met.” Id. (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)). “In addition, it is well established in this circuit that a district court is not obligated to follow any particular procedures when dismissing an action without prejudice under Rule 41(b).” Young, 316 Fed.Appx. at 771-72 (citations omitted).
Plaintiff has failed to submit his Complaint on the court-approved form and has failed to either pay the filing fee or submit a motion for leave to proceed in forma pauperis by the deadline set forth in the Court's order. As a consequence, the Court dismisses this action without prejudice pursuant to Rule 41(b) for failure to comply with court orders.
IT IS THEREFORE ORDERED BY THE COURT that to the extent Plaintiff seeks any relief in his “Motion for the Court to Consider” (Doc. 19), the request is denied.
IT IS FURTHER ORDERED that this action is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
IT IS SO ORDERED.