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Brown v. Taylor

United States District Court, W.D. Oklahoma

January 22, 2019

FABION D. BROWN, Plaintiff,
v.
P.D. TAYLOR, Defendant.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         Fabion D. Brown (Plaintiff), a state prisoner appearing pro se, brings this action under 42 U.S.C. § 1983 claiming violations of his constitutional rights. Doc. 1.[1] Chief United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C), and Fed.R.Civ.P. 72(b). Doc. 4. Because Plaintiff has failed to follow this Court's orders to cure the deficiencies in his application to proceed in forma pauperis, the undersigned recommends the dismissal without prejudice of Plaintiff's action.

         I. Background.

         Plaintiff filed an application to proceed without prepayment of fees or costs. Doc. 2. On July 31, 2018, the undersigned notified Plaintiff that his application for leave to proceed ifp was deficient. Doc. 5. 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. 5, at 1.

         The undersigned expressly advised Plaintiff that because he had filed his action in this Court on July 25, 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 late January 2018 through late July 2018. Doc. 5, at 1-2. The undersigned ordered Plaintiff to cure those deficiencies by August 29, 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 August 17, 2018, Plaintiff filed a second motion for leave to proceed ifp. Doc. 6. This filing included Plaintiff's statement of institutional accounts at Oklahoma County Detention Center. Id. at 3-4. On August 20, 2018, the undersigned notified Plaintiff that his application for leave to proceed ifp was once again deficient and that “he is 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 is or was confined from late January 2018 through late July 2018.” Doc. 7, at 2. The undersigned reminded Plaintiff that in his complaint he stated, “I have been an inmate in the Oklahoma County Jail since about March 2018. I came from O.S.P. in McAlester right to administrative segregation.” Id.; see Doc. 1, at 12. The undersigned ordered Plaintiff to cure those deficiencies by September 19, 2018, again 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 result in a recommendation to dismiss this action.” Doc. 7, at 3, & n.1.

         On September 10, 2018, Plaintiff filed a third motion for ifp executed at “O.S.P. McAlester, OK.” Doc. 8. On September 21, 2018, the undersigned notified Plaintiff his motion for ifp was once again deficient because “Plaintiff's institutional account information from the Oklahoma State Penitentiary in McAlester was not attached to this motion as is required, ” and that “[t]o date, the court has not received Plaintiff's institutional accounts from OSP McAlester and therefore Plaintiff's motion for ifp remains deficient.” Doc. 12, at 2; see Doc. 8, at 4 (“I further certify that the above referenced amounts were calculated pursuant to the prisoner's institutional account(s) a copy of which is attached hereto.”)

         At that time, the court also noted its receipt of Plaintiff's sworn affidavit in which Plaintiff described his attempts to respond to the court's various orders to cure the deficiencies in his ifp applications. Doc. 12, at 2; see Doc. 10. Recognizing Plaintiff's attempts to comply with its orders, the undersigned- rather than recommending dismissal-sua sponte extended Plaintiff's time to cure to November 20, 2018. Doc. 12, at 2-3. The undersigned again warned Plaintiff that his “[f]ailure to comply with this order will result in a recommendation to dismiss this action.” Id. at 3.

         To date Plaintiff has not cured the deficiencies in his ifp application. Instead, Plaintiff filed a “petition for order” requesting “that an ORDER be issued to Oklahoma State Penitentary, requiring it surrender to this court Trust account statements for the period of Jnauary 2018 thru March 2018.” Doc. 16, at 1. Plaintiff states he “has made numerous attempts to get the statements by writing letters and sending the orders given to him from this Court regarding the statements, to Oklahoma State Penitentary . . . [b]ut no response was given.” Id. Plaintiff notes he “knows that without these trust statements the above styled action will be dismissed and he needs this Court's help to get them.” Id.

         II. Analysis.

         Plaintiff has failed to file what he must to comply with this Court's orders. Additionally, it is Plaintiff's obligation, not the courts, to cure his deficiencies, his “petition for order” notwithstanding. See Doc. 16. While the court appreciates Plaintiff's attempts to cure the deficiencies in his application, 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 Fed.R.Civ.P. 41(b) to allow sua sponte dismissal for “failure to . . . comply with the rules of civil procedure or court's orders”).

         III. Recommendation and notice ...


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