Opinion
Case No. CIV-15-645-W
08-13-2015
FELIX GUZMAN RIVADENEIRA, on behalf of the thousands of federal detainees and their families here in the United States of America and all over the world, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, 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 District Judge Lee R. West, this matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C § 636(b)(1)(B). On July 24, 2015, the undersigned entered an order granting Plaintiff's Motion to Proceed In Forma Pauperis, (ECF No. 10), but ordered Plaintiff to pay an initial partial filing fee of $140.23. Plaintiff was advised that he could voluntarily dismiss this action in accordance with Fed. R. Civ. P. 41(a) on or before August 12, 2015, 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.
Despite filing four (4) motions, as of this date, Plaintiff has failed to pay the filing fee as required, show good cause for his failure to do so, or request an extension of time to comply with the Court's order. 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 (10 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 (10 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); Freeman v. Colo, Dep't of Corrs., 396 Fed. Appx. 543, 543-44 (10 Cir. 2010) (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 forgoing, 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. Additionally, Plaintiff's Motion to Amend Complaint (ECF No. 11), Motion to Close All the Detention Centers (ECF No. 12), Motion to Request Mailing Assistant, (ECF No. 13) and Motion to Appoint Counsel for Civil Rights Lawsuit, (ECF No. 14) should be DENIED. Plaintiff is advised that any objections to this Report and Recommendation must be filed with the Clerk of this Court on or before August 31, 2015, 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 (10 Cir. 2010).
This Report and Recommendation disposes of all issues referred to the magistrate judge in the captioned matter.
ENTERED on August 13, 2015.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE