Opinion
Case No. CIV-19-1025-SLP
07-27-2020
BENJAMIN P. LOPEZ, Plaintiff, v. FNU KUSICK, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a prisoner appearing pro se, has filed this action under 42 U.S.C. § 1983 alleging various violations of his constitutional rights. Pursuant to an order entered by United States Judge District Scott L. Palk, this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C § 636(b)(1)(B).
On February 20, 2020, the undersigned entered an order granting Plaintiff's Motion to Proceed In Forma Pauperis, (ECF No. 16), but ordered Plaintiff to pay an initial partial filing fee of $1.17. Plaintiff's deadline for submitting said payment was March 9, 2020. Plaintiff was also advised that he could voluntarily dismiss this action in accordance with Fed. R. Civ. P. 41(a) on or before March 9, 2020, without incurring any fees or costs. Plaintiff was further cautioned that the undersigned would recommend that the action be DISMISSED without prejudice if Plaintiff failed to comply with his obligation to make the initial partial payment or show cause in writing for the failure to pay by the specified date.
Plaintiff has been granted 4 extensions to make the required initial partial payment, the final due date was June 30, 2020. See ECF Nos. 18, 23, 25 and 27. As of this date, Plaintiff has failed to pay the initial partial filing fee as required. In fact, Plaintiff has failed to respond to the Court's last Order in any way. Additionally, the Court's records reflect that mail addressed to Plaintiff is being returned as undeliverable. The envelope indicates "released unable to forward". See ECF No. 28. As of this date, Plaintiff has not submitted a notice of change of address to the Clerk of Court. Plaintiff is responsible for notifying the court of any change of address. See LCvR 5.4(a). Moreover, "[p]apers sent by the Court will be deemed delivered if sent to the last known address given to the Court." Id.
Thus, the action is subject to dismissal without prejudice to re-filing. Local Civil Rule 3.4(a); See 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, No. 06-1075, 208 Fed. Appx. 678 (10th Cir. Dec. 13, 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 County Jail, Nos. 02-4183, 02-4215, 02-4235, 78 Fed. Appx. 72, 73 (10th Cir. Oct. 10, 2003) (same). Moreover, under Fed. R. Civ. P. 41(b) a district court may dismiss an action because the plaintiff fails to comply with a court order requiring partial payments. Cosby, 351 F.3d at 1327.
RECOMMENDATION
In light of the foregoing, the undersigned hereby recommends that this action be DISMISSED without prejudice for Plaintiff's failure to pay the initial filing fee as ordered by the Court. Adoption of the aforementioned recommendation would render Plaintiff's Motions for Order (ECF Nos. 9, 11 and 12) MOOT. Plaintiff is advised that any objections to this Report and Recommendation must be filed with the Clerk of this Court on or before August 13, 2020, in accordance with 28 U.S.C § 636 and Federal Rule of Civil Procedure 72. Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both the factual findings and the legal issues decided herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This report and recommendation terminates the referral to the undersigned magistrate judge unless and until the matter is re-referred.
ENTERED on July 27, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE