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Walton v. McBride

United States District Court, W.D. Oklahoma

June 3, 2019

EDWARD JOE WALTON, Plaintiff,
v.
KARRI JEAN McBRIDE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.

         On 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.[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.

         Plaintiff 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.

         After 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.

         A full month has now passed since the Court's initial order and Plaintiff has failed to pay the initial partial filing fee[2] as ordered and has not shown cause for his nonpayment. Instead, Plaintiff has simply ignored the Court's orders to pay.[3]

         Having 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 pay”).

         Recommendation and Notice of Right to Object

         For the stated reasons, the undersigned recommends the dismissal of Plaintiff's action under Fed.R.Civ.P. 41(b), without prejudice to refiling.

         The 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 Cir. 1991).

         This Report and Recommendation disposes of all issues before the court and terminates the referral to the undersigned Magistrate Judge in the captioned matter.

         ORDERED.

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Notes:

[1] Citations to a court document are to its electronic case filing designation and ...


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