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Colbert v. Johnson

United States District Court, W.D. Oklahoma

November 28, 2017

TRENT A. COLBERT, Plaintiff,
v.
WILLA JOHNSON, Oklahoma County Commissioner, et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. 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.

         Plaintiff 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).

         As of 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.

         II. Discussion

         Under 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).

         Plaintiff's 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. 2005).

         The 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.

         RECOMMENDATION

         Accordingly, the undersigned recommends that the Court dismiss this action without prejudice.

         NOTICE OF RIGHT TO OBJECT

         Plaintiff 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).

         This Report and Recommendation disposes of all issues referred to the undersigned ...


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