Opinion
No. CIV-20-726-J
08-26-2020
PAO XIONG, Plaintiff, v. WILLIAM MCCORMICK, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, brings this action pursuant to 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 keep the Court apprised of his contact information, pay the required filing fee, and/or comply with this Court's Orders.
Plaintiff initially filed this action on July 27, 2020. Doc. No. 1. Plaintiff also filed an Application for Leave to Proceed In Forma Pauperis (Doc. No. 2) seeking leave to commence this action without prepaying the civil filing fees and costs. However, as specifically explained to Plaintiff in an Order entered July 28, 2020, Plaintiff's Application was incomplete and did not include his original signature, the signature of an authorized officer of the institution in which he is incarcerated, nor a certified copy of the statement(s) of Plaintiff's institutional account(s) for the six-month period immediately preceding the filing of this action. Doc. No. 6.
This Court directed Plaintiff to cure these deficiencies no later than August 17, 2020. Id. The Court also provided Plaintiff with a copy of the court-approved in forma pauperis motion. Id. at 1-2. Additionally, the Court informed Plaintiff that failure to comply with the Court's directive could result in dismissal of this action without further notice. Id. at 2.
To date, Plaintiff has failed to either submit the required information and documentation or pay the filing fee. 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 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, 208 F. App'x 678, 679-80 (10th Cir. 2006) (finding no abuse of discretion in district court's dismissal without prejudice of § 1983 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 U.S., 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. Id.; 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).
Additionally, the Court's previous Order was returned as undeliverable, indicating Plaintiff is no longer located at the address he previously provided. Doc. No. 7. Plaintiff has failed to notify the Court of any new contact information, as required by LCvR 5.4(a).
Plaintiff's failure to keep the Court apprised of his contact information, pay the required 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 keep the Court apprised of his contact information, pay the required 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 September 14 , 2020, 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 26 day of August, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE