Opinion
Case No. CIV-19-886-D
10-29-2019
ELGRET LORENZO BURDEX, Plaintiff, v. TIM BRAUER, et al., Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se, has filed this action utilizing a Civil Rights Complaint, alleging various violations of his constitutional rights and requesting habeas corpus relief. Additionally, Plaintiff's Application to Proceed In Forma Pauperis indicated this action was commenced for both civil rights and habeas corpus relief. See ECF Nos. 1 and 2. Chief United States District Judge Timothy DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
In accordance with that referral, the undersigned entered an Order requiring the Plaintiff to cure specific deficiencies within his filings. See ECF No. 8. Plaintiff was advised that he cannot apply for leave to commence this action for both habeas corpus and civil rights relief. Plaintiff was further advised that his Application to Proceed In Forma Pauperis failed to conform to the statutory requirements of 28 U.S.C. § 1915(a)(2) and did not include a certificate executed by an authorized officer of the appropriate penal institution stating (1) the amount of money or securities currently on deposit to the prisoner's credit in any institutional account; (2) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the action; and (3) Plaintiff shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined. See ECF No. 8.
Plaintiff was further advised that he shall file an amended civil rights complaint omitting any claims for habeas corpus relief and that if he desires the Court to consider an action for habeas corpus he must file a separate action, presenting all of his grounds in a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. The Order explained the requirement of a separate filing fee to commence each action. Plaintiff's deadline to comply with the Court's Order was October 21, 2019. See Id.
The Court advised the Plaintiff that his failure to comply with this Order may result in the dismissal of this action without prejudice to re-filing. As directed, the Clerk of Court forwarded to the Plaintiff the necessary forms to enable him to comply with the Court's Order. See ECF No. 8:2-3 and Staff Note dated 09/30/2019.
A review of the court file indicates that as of this date, the Plaintiff has failed to cure the deficiencies, show good cause for his failure to do so, or request an extension of time to comply with the Court's order. However, the Court notes, Plaintiff has filed 6 documents, following the entry of the Court's Order. Entered as a "Notice" (ECF No. 9), Plaintiff submitted an "Inmate Deposit History", but this document provides no useful information, and is not sufficient to cure the deficiencies as ordered. The remaining documents include 2 Motions, 2 Notices and 1 Letter. See ECF Nos. 10-14. A review of each of these filings indicates no attempt to cure the deficiencies as ordered.
Plaintiff has filed several lawsuits in this Court, thus indicating Plaintiff is aware of the proper procedure for requesting and obtaining pauperis status. Most recently, on February 21, 2019, Plaintiff filed a lawsuit under 42 U.S.C. § 1983, in Case No. CIV-19-170-D, Burdex v. Gerlach, et. al. But, on April 16, 2019, the case was dismissed for failure to pay the filing fee or submit a proper motion to proceed in forma pauperis, and for failure to prosecute his case. See Id. ECF No. 11 and 12. Additionally on August 21, 2018, in Case No. CIV-18-693-D, Burdex v. Smith, et. al., the Court granted Plaintiff in forma pauperis status, and required him to pay an initial partial filing fee of $15.00 no later than September 17, 2018. See id. ECF. No. 11. However, Plaintiff failed to do so and the case was dismissed on October 22, 2018. See id. ECF Nos. 14 and 15. --------
To date, Plaintiff has failed to either submit the required financial 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 F. App'x 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 F. App'x 72, 73 (10th Cir. 2003) (same).
The undersigned further finds that Plaintiff's failure to comply with the Court's Order, in light of the Court's right and responsibility to manage its cases, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe County Justice Center, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (sua sponte dismissal for failure to comply with Court's orders permitted under federal rules, and court need not follow any particular procedures in dismissing actions without prejudice for failure to comply). 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 F. App'x 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 F. App'x 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).
RECOMMENDATION
Based on the foregoing findings, it is recommended that this action be DISMISSED without prejudice for Plaintiff's failure to comply with this Court's orders. Any order adopting this Report and Recommendation will moot Plaintiff's outstanding motions before this Court in this matter. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by November 15, 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Plaintiff is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on October 29, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE