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Burdex v. Gerlach

United States District Court, W.D. Oklahoma

March 25, 2019

ELGRET L. BURDEX, Plaintiff,
v.
J. GERLACH, et al., Defendants.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, appearing pro se, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Complaint be dismissed without prejudice due to Plaintiff's failure to pay the required filing fee and/or prosecute this action.

         Plaintiff initially filed this action on February 21, 2019. Doc. No. 1. Plaintiff submitted a Motion for Leave to Proceed In Forma Pauperis, however, did not include the required financial documentation. Doc. No. 2. On February 25, 2019, this Court directed Plaintiff to cure this deficiency no later than March 15, 2019. Doc. No. 6. The Court also advised Plaintiff that failure to do so would result in the undersigned recommending dismissal of this action without further notice. Id. at 2.

         To date, Plaintiff has failed to either submit the required documentation or pay the filing fee.[1] Thus, the action is subject to dismissal without prejudice to re-filing. LCvR 3.4(a); See, cf., Cosby v. Meadors, 351 F.3d 1324, 1326-33 (10th Cir. 2003) (upholding dismissal of civil rights complaint based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay). See also Kennedy v. Reid, 208 Fed.Appx. 678, 679-80 (10th Cir. 2006) (finding no abuse of discretion in district court's dismissal without prejudice of section 1983 action due to litigant's failure to timely pay initial filing fee); Campanella v. Utah Cty. Jail, 78 Fed.Appx. 72, 73 (10th Cir. 2003) (same).

         Moreover, 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 “ha[s] 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, 916-17 (10th Cir. 2012) (quotations omitted); see also AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules.” (quotations omitted)). If the dismissal is without prejudice, the Court generally need not follow any “particular procedures” in entering the dismissal order. Id. at 1236; see also Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed.R.Civ.P. 41(b) without attention to any particular procedures).

         Plaintiff's failure to pay the required filing fee and/or comply with the Court's orders leaves the Court unable “to achieve [an] orderly and expeditious” resolution of this action. Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative). As outlined above, the Court has provided Plaintiff sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.

         RECOMMENDATION

         Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to pay the filing fee and/or comply with the Court's orders. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 15th, 2019, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

         This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.

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Notes:

[1] Notably, Plaintiff has filed several lawsuits in this Court. Most recently, Plaintiff filed a lawsuit under 42 U.S.C. § 1983 in July 2018. No. CIV-18-693-D, Burdex v. Smith, et. al. On August 21, 2018, the Court granted Plaintiff in forma pauperis standard, indicating Plaintiff is aware of the proper procedure for obtaining said status, and required him to pay an initial partial filing fee of $15.00 no later than September 17, 2018. ...


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