United States District Court, W.D. Oklahoma
BENJAMIN T. CASTEEL, Plaintiff,
WILLA JOHNSON et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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)).
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.
reasons set forth above, the undersigned recommends dismissal
of this action without prejudice and without imposition of
fees or costs.
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 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).
Report and Recommendation disposes of all issues referred to
the undersigned ...