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Johnson v. Deputy Warden

United States District Court, W.D. Oklahoma

March 9, 2018

LAMONE M. JOHNSON, Plaintiff,
v.
DEPUTY WARDEN, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Background

         On 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.

         Plaintiff 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.

         II. Discussion

         As of 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).

         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 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).

         Despite 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.

         RECOMMENDATION

         Accordingly, the undersigned recommends that the Court dismiss this action without prejudice and with no fees or costs imposed.

         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 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).

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


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