United States District Court, W.D. Oklahoma
TRENT A. COLBERT, Plaintiff,
WILLA JOHNSON, Oklahoma County Commissioner, et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Trent A. Colbert filed this 42 U.S.C. § 1983 action in
September 2017, identifying himself as a pro se litigant
incarcerated at Oklahoma County Detention Center. This matter
was referred to the undersigned for initial proceedings
consistent with 28 U.S.C. § 636(b). In light of
Plaintiff's failure to comply with this Court's
orders and applicable rules, the Court should dismiss this
action without prejudice.
Background On October 4, 2017, the Court granted
Plaintiff Trent A. Colbert's application for leave to
proceed in forma pauperis and ordered Plaintiff to
pay an initial partial filing fee of $31.84 no later than
October 25, 2017, pursuant to 28 U.S.C. § 1915(b)(1)(A).
Plaintiff was advised that if he did not pay this fee, or
show good cause for his failure to do so, this action was
subject to dismissal without prejudice. See Order of
Oct. 4, 2017 (Doc. No. 5) at 1.
did not timely comply with the Court's Order.
Nevertheless, on October 30, 2017, the Court on its own gave
Plaintiff a second and expressly “final”
opportunity to do so. Plaintiff was ordered to pay the full
filing fee, submit the $31.84 partial filing fee, or show
good cause for the failure to pay no later than November 13,
2017. See Order of Oct. 30, 2017 (Doc. No. 6) at 1.
Plaintiff was again advised that any failure to comply would
leave this action subject to dismissal without prejudice.
See id.; see also Order of Nov. 1, 2017
(Doc. No. 8) (denying Plaintiff's untimely request for
additional time as moot in light of the Court's sua
sponte extension of the payment deadline).
this date, Plaintiff has submitted no further filings to the
Court, and no payments have been submitted to the Clerk of
Court either by Plaintiff or on Plaintiff's behalf.
Federal Rule of Civil Procedure 41(b), if a plaintiff
“fails to prosecute or to comply with these rules or a
court order, ” the Court may dismiss the action.
See Fed. R. Civ. P. 41(b). The Tenth Circuit
“ha[s] consistently interpreted Rule 41(b) to permit
courts to dismiss actions sua sponte for a plaintiff's
failure to prosecute.” Huggins v. Supreme Court of
U.S., 480 F. App'x 915, 916-17 (10th Cir. 2012)
(internal quotation marks 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.” (internal quotation
marks 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; accord
Robledo-Valdez v. Smelser, 593 F. App'x 771, 775
(10th Cir. 2014).
failure to prosecute his action and to 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. Co., 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). Additionally,
Plaintiff's lack of prosecution has left the Court unable
to collect any of the $350.00 filing fee owed by Plaintiff
and warrants dismissal. See LCvR 3.4(a)
(“Failure of any applicant to pay the initial partial
filing fee . . . by the date specified, to seek a timely
extension within which to make the payment, or to show cause
in writing by that date why the applicant cannot pay the fee
shall be cause for dismissal of the action without prejudice
to refiling.”); Soboroff v. Doe, 569 F.
App'x 606, 608-09 (10th Cir. 2014); Frey v.
McCormack, 150 F. App'x 848, 849-50 (10th Cir.
Court has provided Plaintiff sufficient notice of the
possibility of dismissal and opportunity to respond, as well
as an additional response opportunity through objection to
this Report and Recommendation. See Order of Oct. 4,
2017, at 1; Order of Oct. 30, 2017, at 1.
the undersigned recommends that the Court dismiss this action
OF RIGHT TO OBJECT
is advised of his right to file an objection to this Report
and Recommendation with the Clerk of this Court by December
19, 2017, in accordance with 28 U.S.C. § 636 and Federal
Rule of Civil Procedure 72. Plaintiff is further advised that
failure to timely object to this Report and Recommendation
waives the 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).
Report and Recommendation disposes of all issues referred to
the undersigned ...