United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.
April 16, 2019, Plaintiff, a state pre-trial detainee
appearing pro se, brought this action seeking relief under 42
U.S.C. § 1983. See Doc. 1. Chief United
States District Judge Joe Heaton referred the matter to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C).
See Doc. 4.
failed to pay the filing fee upon his initiation of this
action. The undersigned then ordered Plaintiff to cure the
deficiency or file a motion for leave to proceed in forma
pauperis by May 9, 2019. See Doc. 5. On April 29,
2019, Plaintiff filed two motions seeking leave to proceed in
forma pauperis. Docs. 6, 7. On May 3, 2019, the undersigned
found Plaintiff was entitled to proceed without pre-payment
of the full filing fee. See Doc. 8, at 1. Based on
Plaintiff's submissions, the undersigned found Plaintiff
would be required to pay the full $400 filing fee in
installments, starting with an initial partial filing fee of
$5.15. See Doc. 8, at 1. The undersigned ordered
Plaintiff to pay that $5.15 fee on or before May 23, 2019,
and expressly advised “that unless by [May 23, 2019],
Plaintiff has either (1) paid the initial partial filing fee,
or (2) shown cause in writing for the failure to pay, this
action will be subject to dismissal without prejudice to
refiling . . . .” Id. at 2. Plaintiff was also
given the option of voluntarily dismissing the action on or
before May 23, 2019, without incurring any costs or fees.
Id. The Court directed the Clerk of Court not to
issue process until further order of the Court.
receiving the order Plaintiff filed a letter with the Court
on May 9, 2019. Doc. 9. The Court construed the letter as a
motion to reconsider, which it denied. Doc. 10, at 1. In the
order denying reconsideration the undersigned again warned
Plaintiff of his duty to pay the initial partial filing fee
of $5.15 on or before May 23, 2019. Id. The Court
further warned Plaintiff that any further correspondence not
in the proper form of a motion or pleading would be summarily
stricken from the record. Id. at 2. On May 17, 2019,
Plaintiff filed a second letter with the Court (Doc. 11),
which the undersigned struck from the record. Doc. 13.
month has now passed since the Court's initial order and
Plaintiff has failed to pay the initial partial filing
as ordered and has not shown cause for his nonpayment.
Instead, Plaintiff has simply ignored the Court's orders
been duly warned by the Court of the consequences of his
nonpayment, the undersigned concludes dismissal of this
action without prejudice to refiling is warranted under
Fed.R.Civ.P. 41(b). See Hill v. Fort Leavenworth
Disciplinary Barracks, 660 Fed.Appx. 623, 625 (10th Cir.
2016) (holding the district court did not abuse its
discretion in dismissing an action without prejudice when,
“[d]espite warnings from the district court,
[Plaintiff] failed to pay the statutorily mandated filing fee
and failed to otherwise establish his inability to
and Notice of Right to Object
stated reasons, the undersigned recommends the dismissal of
Plaintiff's action under Fed.R.Civ.P. 41(b), without
prejudice to refiling.
undersigned advises Plaintiff of the right to file an
objection to this Report and Recommendation with the Clerk of
Court on or before June 24, 2019, under 28 U.S.C. §
636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further
advises Plaintiff that failure to file a timely objection to
this Report and Recommendation waives the right to appellate
review of both factual and legal issues contained herein.
See Moore v. United States, 950 F.2d 656, 659 (10th
Report and Recommendation disposes of all issues before the
court and terminates the referral to the undersigned
Magistrate Judge in the captioned matter.
 Citations to a court document are to
its electronic case filing designation and