Opinion
No. CIV-21-71-D
03-23-2021
JONATHAN ANIBAL CLAUDIO, Plaintiff, v. TOM BATES, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, brings this action under 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 partial filing fee and/or prosecute this action.
Plaintiff initially filed this action on February 1, 2021. Doc. No. 1. On that same date, Plaintiff submitted an Application for Leave to Proceed In Forma Pauperis. Doc. No. 2. On February 2, 2021, this Court granted Plaintiff's Application and directed him to pay an initial partial filing fee in the amount of $6.20 no later than March 2, 2021. Doc. No. 6. The Court also advised Plaintiff that failure to either pay the partial filing fee or show cause in writing for his failure to do so would result in the undersigned recommending dismissal of this action without further notice. Id. at 1-2. Plaintiff failed to comply with either directive. On March 2, 2021, the Court issued an Order directing Plaintiff, no later than March 16, 2021, to either pay the initial partial filing fee or show cause in writing why this matter should not be dismissed. Doc. No. 8.
To date, Plaintiff has failed to pay the partial filing fee or show cause in writing why he is unable to do so. 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 action 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 civil 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).
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 the United States, 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. AdvantEdge Bus. Grp., 552 F.3d 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).
Plaintiff's failure to pay the required partial 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.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to pay the partial 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 12 , 2021, 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 waived.").
This 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 denied.
Dated this 23 day of March, 2021.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE