United States District Court, W.D. Oklahoma
LAMONE M. JOHNSON, Plaintiff,
DEPUTY WARDEN, Defendant.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
Lamone M. Johnson filed this federal civil rights action in
January 2018, identifying himself as a pro se incarcerated
litigant. This matter was referred to the undersigned for
initial proceedings consistent with 28 U.S.C. § 636. In
light of Plaintiff's failure to comply with this
Court's orders and applicable rules, the Court should
dismiss this action without prejudice.
January 31, 2018, the Court granted Plaintiff's
application for leave to proceed in forma pauperis
(Doc. No. 2) and ordered Plaintiff to pay an initial partial
filing fee of $2.64 no later than February 21, 2018, pursuant
to 28 U.S.C. § 1915(b)(1)(B). 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.
See Order of Jan. 31, 2018 (Doc. No. 6) at 1.
did not, by the original deadline, pay the initial partial
payment or seek an extension of his time to do so.
Accordingly, on February 26, 2018, Plaintiff was directed
that if he wished to continue with this lawsuit, he had
“one final opportunity” to submit his $2.64
initial partial fee or show good cause in writing for his
failure to do so. See Order of Feb. 26, 2018 (Doc.
No. 7) at 1. Plaintiff was advised that if he did not pay the
full $350.00 filing fee, pay the initial partial fee, or
show, in writing, good cause for the failure to pay, by March
12, 2018, “this action will be subject to dismissal
without prejudice to refiling and with no fees or costs
imposed.” Id. (citing LCvR 3.4(a)). Plaintiff
did not take any action in response.
the present date, Plaintiff has not submitted his required
initial payment or a request for additional time to do so,
and he has made no attempt to show cause for his failure to
comply with the Court's Orders and with 28 U.S.C. §
1915(b)(1)(B). There is no indication from the docket that
Plaintiff did not receive the Court's previous Orders,
which were mailed to Plaintiff's address of record.
See Doc. Nos. 6, 7; LCvR 5.4(a).
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 Fed.Appx. 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). 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
(internal quotation marks omitted); see also
Robledo-Valdez v. Smelser, 593 Fed.Appx. 771,
775 (10th Cir. 2014); Soboroff v. Doe, 569 Fed.Appx.
606, 608-09 (10th Cir. 2014).
being given ample opportunity, Plaintiff has not paid his
required initial partial fee or explained to the Court why he
could not do so. 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); see
also James v. Roberts, 458 Fed.Appx. 734, 737-38 (10th
Cir. 2012); Brown v. Beck, 203 Fed.Appx. 907, 910-11
(10th Cir. 2006). And Plaintiff's failure to pay, seek an
extension, or show cause is “cause for dismissal
without prejudice to refiling.” LCvR 3.4(a). The Court
has provided Plaintiff sufficient notice of the possibility
of dismissal and opportunity to respond, as well an
additional response opportunity through objection to this
Report and Recommendation.
the undersigned recommends that the Court dismiss this action
without prejudice and with no fees or costs imposed.
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 April 16,
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 ...