Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wirtz v. Taylor

United States District Court, W.D. Oklahoma

May 16, 2018

ROBERT LOUIS WIRTZ, JR., Plaintiff,
v.
P.D. TAYLOR, Sheriff, in his individual and official capacities, and ARMOR, INC., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         I. Background.

         On February 12, 2018, Robert Louis Wirtz, Jr. (Plaintiff), a state prisoner appearing pro se and seeking to proceed in forma pauperis (ifp), filed this action seeking relief under 42 U.S.C. § 1983. Docs. 1-3.[1] United States District Judge Timothy D. DeGiusti then referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.

         On February 15, 2018, the undersigned notified Plaintiff that his application for leave to proceed ifp, Docs. 2, 3, was deficient. Doc. 6. The undersigned explained that the law of the United States requires that

[a] prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.

28 U.S.C.A. § 1915(a)(2); Doc. 6, at 1.

         The undersigned expressly advised Plaintiff that because he had filed his action in this Court on February 12, 2018, he was required to obtain and submit a certified copy of his trust account statements (or the institutional equivalent) from the appropriate official of each penal institution or jail at which he was or had been confined from early August 2017 through early February 2018. Doc. 6, at 1-2. The undersigned ordered Plaintiff to cure those deficiencies by March 16, 2018, directed the Clerk of Court to provide him with the necessary forms, and warned Plaintiff that his “[f]ailure to comply with this order will likely result in the recommended dismissal of this action.” Id. at 2, & n.2.

         On March 14, 2018, Plaintiff filed a second motion for leave to proceed ifp. Doc. 8. In this motion, Plaintiff stated, “I have only been in jail since December, ”[2] and attached Plaintiff's Oklahoma County Detention Center account statement from December 18, 2017 to March 5, 2018. Id. at 3-4.

         On March 19, 2018, the undersigned notified Plaintiff that his application for leave to proceed ifp, id., was once again deficient. Doc. 9. The undersigned requested Plaintiff correct his misstatement to the Court regarding his dates of incarceration for the relevant time period, extended Plaintiff's time to cure his deficient ifp application to April 18, 2018, and again warned Plaintiff that his “failure to comply with this order will result in a recommendation to dismiss this action.” Id. at 2, 3.

         On April 23, 2018, having received nothing further from Plaintiff, the court sua sponte granted Plaintiff an extension to cure his deficient application by May 7, 2018. Doc. 10. The undersigned also found that (1) Plaintiff had previously been clearly advised of the deficiencies regarding his pending ifp application; (2) he had been given ample time to cure those deficiencies; and (3) with the liberal extension granted with the order, the undersigned did not anticipate granting any further time extensions. Id. at 2. The undersigned specifically warned Plaintiff that his failure to comply with the order would result in a recommendation to dismiss this action. Id.

         II. Analysis.

         Plaintiff has ignored the undersigned's orders emphasizing his obligation to submit a certified copy of his trust account statements from the appropriate official of each penal institution or jail at which he was or had been confined from early August 2017 through early February 2018. See Docs. 6, 9, 10. Plaintiff has failed to do so despite the undersigned's explanations and extensions of time.

         Although Plaintiff never disclosed the following facts to the court, judicial notice is taken of the electronic records of the District Court in and for Tulsa County, Oklahoma, the United States District Court for the Northern District of Oklahoma, and the District Court in and for Oklahoma County, Oklahoma.[3] Those records reflect that in Case No. CF-2016-5939, Plaintiff began his incarceration in the custody of the Department of Corrections on May 11, 2017 with a release date set for May 5, 2018.[4] It does not appear that Plaintiff was released from confinement at any point thereafter.[5] To the contrary, public records show Plaintiff filed a letter on August 18, 2017 with the Northern District of Oklahoma from the Howard McLeod Correctional Center in Atoka, Oklahoma where he was confined.[6] On September 18, 2017, Plaintiff informed the Northern District of Oklahoma of his new address at the Dick Conner Correctional Facility in Hominy, Oklahoma.[7] On November 29, 2017, Plaintiff was charged with escape from a penitentiary, and he pled guilty to this charge on April 30, 2018.[8] The date of this offense was November 18, 2017.[9] Therefore, Plaintiff was confined by the Oklahoma Department of Corrections for some period of time between early August 2017 and December 2017, but failed to comply not only with his obligation to submit a certified copy of his trust account statements for that time period under 28 U.S.C. § 1915(a)(2), but also with the undersigned's orders that squarely brought that requirement to his attention. See Docs. 6, 9, 10.

         To date Plaintiff has not responded to this Court's order. He has neither cured the deficiencies, nor shown good cause for his failure to do so, nor requested an extension of time to comply with the order. The undersigned finds that Plaintiff's failure to comply with this Court's order, together with the Court's right and responsibility to manage and control its case load, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (noting the Court applies ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.