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Casteel v. Johnson

United States District Court, W.D. Oklahoma

April 30, 2018

BENJAMIN T. CASTEEL, Plaintiff,
v.
WILLA JOHNSON et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Benjamin T. Casteel, a state prisoner proceeding pro se, filed this 42 U.S.C. § 1983 action on January 22, 2018. United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. The undersigned recommends that Plaintiff's action be dismissed because he has failed to prosecute his case in accordance with this Court's orders and procedural rules.

         BACKGROUND

         In his Complaint, Plaintiff identifies himself as a convicted state prisoner incarcerated at Mark Alford Correctional Center in Springtown, Oklahoma. See Compl. (Doc. No. 1) at 1. Upon initial review of Plaintiff's pleading, the Court informed Plaintiff that the filing fee for a 42 U.S.C. § 1983 complaint is $400.00, as noted on the Court's current fee schedule. See Order of Jan. 29, 2018 (Doc. No. 4) at 1. Plaintiff was instructed that he must either pay this filing fee or file an application for leave to proceed in forma pauperis no later than February 19, 2018. Id. at 1-2. Plaintiff was advised: “Failure to comply with this Order may result in the dismissal of this action without prejudice.” Id. at 2. This Order was mailed to Plaintiff at his address of record, and there is no indication from the docket that he did not receive it. See LCvR 5.4(a).

         On March 9, 2018, the Court gave Plaintiff “one final opportunity” to submit the filing fee or file an application for leave to proceed in forma pauperis. Order of Mar. 9, 2018 (Doc. No. 5) at 1-2. The Court warned Plaintiff that his failure to comply with this Order by March 30, 2018, could result in the dismissal of his action. See Id. at 1. The Clerk's Office promptly mailed the Order to Plaintiff at his address of record, and there is no indication that Plaintiff did not receive it. As of this date, Petitioner has not paid the filing fee, filed an application for leave to proceed in forma pauperis, sought an extension of time, or attempted to show good cause for his failure to follow the Court's orders.

         ANALYSIS

         This Court has inherent authority to clear its “calendar[] of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). “Dismissal for failure to prosecute is a recognized standard operating procedure in order to clear the deadwood from courts' calendars where there has been prolonged and unexcused delay, ” Bills v. United States, 857 F.2d 1404, 1405 (10th Cir. 1988), or to “sanction a party for failing to . . . comply with local or federal procedural rules, ” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., 552 F.3d 1233, 1236 (10th Cir. 2009) (internal quotation marks omitted). “When dismissing a case without prejudice, a district court may, without abusing its discretion, enter such an order without attention to any particular procedures.” AdvantEdge Bus. Grp., 552 F.3d at 1236 (internal quotation marks omitted); accord Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 774-75 (10th Cir. 2014) (citing Fed.R.Civ.P. 41(b)).

         Plaintiff has been warned in two separate Orders that his failure to comply with the Court's directives and rules, and to do so by a date certain, may result in his case being dismissed without prejudice. See Order of Jan. 29, 2018, at 1-2; Order of Mar. 9, 2018, at 1-2. Despite being given ample opportunity to do so, Plaintiff has not taken the steps necessary to prosecute his case. See Robledo-Valdez, 593 Fed.Appx. at 774; Sheptin v. Corr. Healthcare Mgmt. Contractor Co., 288 Fed.Appx. 538, 540 (10th Cir. 2008) (noting that a district court cannot grant IFP status to an incarcerated plaintiff without the financial information required by 28 U.S.C. § 1915, and it may dismiss an action without prejudice when the prisoner unjustifiably fails to timely submit this information). Plaintiff's failure to comply with the Court's orders and deadlines leaves the Court unable to “achieve [an] orderly and expeditious” resolution of this action. Link, 370 U.S. at 631.

         RECOMMENDATION

         For the reasons set forth above, the undersigned recommends dismissal of this action without prejudice and without imposition of fees or costs.

         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 May 21, 2018, 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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