United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation
(“Report”) of United States Magistrate Judge Shon
T. Erwin, to whom this 42 U.S.C. § 1983 action was
referred for initial proceedings in accordance with 28 U.S.C.
§ 636(b)(1)(B). Upon the filing of the Complaint,
Plaintiffs were in the custody of the Grady County Jail in
Chickasha, Oklahoma. [Doc. No. 1]. Appearing pro se
and seeking leave to proceed in forma pauperis,
Plaintiffs asserted claims based on alleged violations of
their constitutional rights.
September 11, 2019, Judge Erwin ordered Plaintiffs to cure
the deficiencies in their filed pleadings no later than
September 30, 2019 [Doc. No. 5]. Specifically, Judge Erwin
advised that Plaintiffs must each pay the $400.00 filing fee
or submit a motion for leave to proceed in forma
pauperis that conforms with the statutory requirements;
that Plaintiffs should refile the Complaint on the form
provided by the Clerk of Court; and that the failure to
comply could result in the dismissal of the action without
prejudice to refiling. Id. The Clerk forwarded to
Plaintiffs the necessary forms on the same date. See
Id; see also Staff Notes dated Sept. 11, 2019.
record reflects that on September 20, 2019, Judge Erwin's
order to cure deficiencies was returned with the notation
“Not in Grady County Jail Return to Sender.”
[Doc. No. 7].
October 7, 2019, Judge Erwin filed his Report [Doc. No. 8],
recommending that Plaintiffs' action be dismissed without
prejudice to refiling. Specifically, Judge Erwin noted that
Plaintiffs had failed to cure the deficiencies or respond to
the Court's order in any way. Id. Judge Erwin
also noted that Plaintiffs had not submitted a notice of
change of address to the Court, and that Plaintiffs were
responsible for notifying the Court of any change of address
pursuant to the Local Rules. Id.
Report [Doc. No. 8], Judge Erwin advised Plaintiffs of their
right to object and directed that any objection be filed on
or before October 24, 2019. Judge Erwin further advised
Plaintiffs that any failure to object would result in waiver
of the right to appellate review. The deadline for filing
objections has passed. To date, Plaintiffs have not filed
objections and have not sought an extension of time in which
to do so. The Court notes that the record reflects the copy
of the Report mailed to Plaintiffs was returned with the
notation that Plaintiffs were no longer at the address
provided to the Court. [Doc. No. 9].
Rule 5.4(a) expressly provides that a pro se
litigant must file a change of address form when he moves,
and the responsibility of the Court and the opposing parties
is limited to mailing pleadings to a pro se
litigant's last known address. LCvR 5.4(a). Material
mailed by the Court to the last known address furnished by
the pro se litigant is deemed delivered. Id. See
also Fed. R. Civ. P. 5(b)(2)(C) (service complete upon
mailing to a person's last known address). To date,
Plaintiffs have not filed a change of address form or
otherwise informed the Court of their new address.
See LCvR 5.4(a).
Court agrees with Judge Erwin that Plaintiffs' failure to
comply with the Court's orders warrants dismissal of this
action without prejudice. Nasious v. Two Unknown B.I.C.E.
Agents at Arapahoe County Justice Ctr., 492 F.3d 1158,
1161-1162 n. 2 (10th Cir. 2007) (Rule 41(b)
permits courts to dismiss actions sua sponte where a
plaintiff fails to comply with the Federal Rules of Civil
Procedure or the Court's orders). The Tenth Circuit has
“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, 916-917 (10th Cir.
May 16, 2012) (unpublished) (internal quotation marks
omitted), citing Olsen v. Mapes, 333 F.3d 1199,
1204, n. 3 (10th Cir. 2003); see also
AdvantEdge Bus. Group v. Thomas E. Mestmaker &
Associates, Inc., 552 F.3d 1233, 1236 (10th
Cir. 2009) (dismissal without prejudice warranted as a
sanction for failure to prosecute or for failure to comply
with local or federal procedural rules); United States ex
rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855
(10th Cir. 2005) (dismissal appropriate where
party disregards court orders and fails to proceed as
required by court rules).
Judge Erwin's Report and Recommendation is ADOPTED as
though fully set forth herein. This action is dismissed
without prejudice to the filing of a new action. A judgment
shall be issued forthwith.
IS SO ORDERED
 Unpublished opinion cited pursuant to
Fed. R. App. P. 32.1(a) and 10TH Cir. R.