United States District Court, W.D. Oklahoma
ELGRET L. BURDEX, Plaintiff,
J. GERLACH, et al., Defendants.
REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE
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.
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.
date, Plaintiff has failed to either submit the required
documentation or pay the filing fee. 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)
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
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.
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
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
 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,