Opinion
Case No. CIV-19-768-STE
02-10-2020
ANTRIANA WRIGHT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Before the Court is Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. (ECF No. 2). The matter has been assigned to the undersigned Magistrate Judge pursuant to In re: Social Security Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1, 2017). In accordance with that assignment, the undersigned entered a Report and Recommendation recommending that the Plaintiff be denied leave to proceed in forma pauperis. It was further recommended that if Plaintiff failed to pay the $400.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling. See ECF No. 4. Chief United States District Judge Timothy D. DeGiusti entered an Order Adopting this Recommendation on September 17, 2019, therefore Plaintiff's due date for submitting the $400.00 filing fee was October 8, 2019. See ECF No. 7.
Upon Plaintiff's failure to pay the filing fee, or otherwise respond to the Court, the undersigned entered a Show Cause Order. See ECF No. 8. The Plaintiff was notified that unless she showed this Court, on or before February 3, 2020, good cause for her failure to pay the full filing fee as ordered, this action would be subject to dismissal without prejudice to re-filing.
As of this date, Plaintiff has failed to pay the filing fee as required. In fact, Plaintiff has failed to respond to the Court in any way. Further, there is no indication from the docket that Plaintiff did not receive the Court's previous Orders which were mailed to Plaintiff's address of record. See Staff Note entry dated 1/17/2020; ECF No. 8; LCvR 5.4(a). 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 filing fee as ordered by the Court. Plaintiff is advised that any objections to this Report and Recommendation must be filed with the Clerk of this Court on or before February 28, 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).
ENTERED on February 10, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE