United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation
(“Report”) of United States Magistrate Judge
Suzanne Mitchell, to whom this 42 U.S.C. § 1983 action
was referred for initial proceedings in accordance with 28
U.S.C. § 636(b)(1)(B). It appears upon the filing of the
Complaint, Plaintiff was in the custody of the Oklahoma
County Jail. [Doc. No. 1]. Appearing pro se and
seeking leave to proceed in forma pauperis,
Plaintiff asserted claims based on the alleged violation of
his constitutional rights.
February 15, 2018 Order, Judge Mitchell directed Plaintiff to
cure certain deficiencies in his Application for in Forma
Pauperis Status. [Doc. No. 6]. Specifically, Judge
Mitchell advised Plaintiff that he was required to submit a
certified copy of his trust fund account statements (or the
institutional equivalent) from each penal institution or jail
where he had been confined since early August 2017. Plaintiff
was ordered to cure the deficiencies by March 15, 2018. Judge
Mitchell warned Plaintiff that failure to comply could result
in the recommended dismissal of the action.
March 14, 2018, Plaintiff filed a second Motion for Leave to
Proceed in Forma Pauperis [Doc. No. 8]. Plaintiff
asserted in the motion that he had only been in jail since
December 2017 and attached his account statement from
December 18, 2017 to March 5, 2018. [Doc. No. 8 at 2-4].
March 19, 2018, Judge Mitchell notified Plaintiff that his
second motion for leave to proceed in forma pauperis
was also deficient because Plaintiff had misrepresented his
dates of incarceration and trust account statements from
early August 2017 through early February 2018 were required.
[Doc. No. 9 at 2]. Judge Mitchell extended Plaintiff's
time to cure his deficient in forma pauperis
application to April 18, 2018. Id. at 3. Plaintiff
was again cautioned that his failure to comply could result
in the recommended dismissal of the action. Id.
April 23, 2018, Judge Mitchell sua sponte granted
Plaintiff an extension to cure his deficient application by
May 7, 2018. [Doc. No. 10]. After Plaintiff failed to cure
the deficiencies or request an extension of time to do so, on
May 16, 2018, Judge Mitchell filed her Report [Doc. No. 11],
recommending that Plaintiff's action be dismissed without
prejudice to refiling.
Report, Judge Mitchell advised Plaintiff of his right to
object and directed that any objection be filed on or before
June 6, 2018. Judge Mitchell further advised Plaintiff that
any failure to object would result in waiver of the right to
appellate review. To date, Plaintiff has not filed objections
and has not sought an extension of time in which to do so.
The Court notes that the record reflects the copy of the
Report mailed to Plaintiff was returned with the notation
“return to sender/unable to forward.” [Doc. No.
Rule 5.4(a) expressly provides that a pro se
litigant must file a change of address form when he moves,
and the responsibility of the Court and the opposing parties
is limited to mailing pleadings to a pro se
litigant's last known address. LCvR 5.4(a). Material
mailed by the Court to the last known address furnished by
the pro se litigant is deemed delivered. Id. See
also Fed. R. Civ. P. 5(b)(2)(C) (service complete upon
mailing to person's last known address). To date,
Plaintiff has not filed a change of address form or otherwise
informed the Court of his new address. See LCvR
Court agrees with Judge Mitchell that Plaintiff's failure
to inform the Court of his current address or correct the
deficiencies warrants dismissal of this case without
prejudice. Pursuant to Fed.R.Civ.P. 41(b), if a plaintiff
“fails to prosecute or to comply with these rules or a
court order, ” the Court may dismiss the action. The
Tenth Circuit has “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, 916-917
(10th Cir. May 16, 2012)
(unpublished) (internal quotation marks omitted),
citing Olsen v. Mapes, 333 F.3d 1199, 1204, n. 3
(10th Cir. 2003); see also AdvantEdge Bus.
Group v. Thomas E. Mestmaker & Associates, Inc., 552
F.3d 1233, 1236 (10th Cir. 2009) (dismissal
without prejudice warranted as sanction for failure to
prosecute or for failure to comply with local or federal
procedural rules); Green v. Dorrell, 969 F.2d 915,
917 (10thCir. 1992); United States ex rel.
Jimenez v. Health Net, Inc., 400 F.3d 853, 855
(10th Cir. 2005) (dismissal appropriate where
party disregards court orders and fails to proceed as
required by court rules).
Judge Mitchell's Report and Recommendation is ADOPTED as
though fully set forth herein. This action is dismissed
without prejudice to the filing of a new action. A judgment
shall be issued forthwith.
 Unpublished opinion cited pursuant to
Fed. R. App. P. 32.1(a) and 10TH Cir. R.