Opinion
CIV-23-825-G
10-11-2023
YUSUFU DANMOLA, Petitioner, v. WARDEN GOLDEY, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 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 Petition be dismissed without prejudice due to Petitioner's failure to pay the required filing fee and/or comply with this Court's Orders.
Petitioner filed this action on September 18, 2023. Doc. No. 1. At that time, he neither paid the $5 filing fee nor sought leave to commence this action without prepaying the civil filing fees and costs. On September 20, 2023, the Court issued an Order directing Petitioner to cure this deficiency no later than October 10, 2023. Id. at 1. The Court also provided Petitioner with a copy of the court-approved in forma pauperis motion. Id. at 1-2. Additionally, the Court informed Petitioner that failure to comply with the Court's directive could result in dismissal of this action. Id. at 2.
To date, Petitioner has failed to either pay the filing fee, file an Application for Leave to Proceed In Forma Pauperis, or otherwise respond to the Court's Order. Therefore, 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 lawsuit based on noncompliance with orders requiring installments on the filing fee or to show cause for the failure to pay). See also, cf., Kennedy v. Reid, 208 Fed.Appx. 678, 679-80 (10th Cir. 2006) (finding no abuse of discretion in district court's dismissal of action without prejudice due to litigant's failure to timely pay initial filing fee); Campanella v. Utah Cnty. Jail, 78 Fed.Appx. 72, 73 (10th Cir. 2003) (same).
Additionally, the Court's previous two Orders, including the Order directing Petitioner to cure his deficiency, were returned as undeliverable. Doc. Nos. 6, 7. Thus, Petitioner has failed to keep the Court apprised of his current contact information, as required by LCvR 5.4.
Pursuant to Federal Rule of Civil Procedure 41(b), if a party “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 [party's] failure to prosecute.” Huggins v. Sup. Ct. of U.S., 480 Fed.Appx. 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.; see also Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Federal Rule of Civil Procedure 41(b) without attention to any particular procedures).
Petitioner's failure to pay the required filing fee and/or comply with the Court's orders and Local Civil Rules 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 Petitioner 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 Petitioner's action be dismissed without prejudice based on his failure to pay the filing fee and/or comply with the Court's orders. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by October 31st, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 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.