The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DENNIS LEE GLIDEWELL, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-00863-JD
)
KEVIN STITT, Governor; and LARRY )
MORRIS, ADAM LUCK, SCOTT )
WILLIAMS, and ALLEN McCALL, )
Pardon and Parole Board Members, )
)
Defendants. )
ORDER
Before the Court is the Report and Recommendation (“R. & R.”) [Doc. No. 5] of
United States Magistrate Judge Amanda Maxfield Green, recommending that this action
be dismissed without prejudice to refiling for Plaintiff’s failure to comply with Judge
Green’s October 3, 2023, order requiring Plaintiff to file an in forma pauperis motion or
pay the filing fee [Doc. No. 4]. Judge Green advised Plaintiff of his right to object to the
Report and Recommendation by November 27, 2023, and explained that Plaintiff’s
failure to make a timely objection waives the right to appellate review of the factual
findings and legal issues in the Report and Recommendation. R. & R. at 3.
Plaintiff did not file an objection to the Report and Recommendation. And the
record reflects that Plaintiff has still not cured the deficiencies in Judge Green’s October
3, 2023 order.
Although the Court is not required to conduct a de novo review of the Report and
Recommendation unless a party timely objects, see 28 U.S.C. § 636(b)(1)(C), the Court
has conducted such a review and concludes that dismissal without prejudice to refiling is
appropriate.
In light of Plaintiff’s failure to comply with Judge Green’s order, the Court finds
that dismissal is appropriate under Rule 41(b) of the Federal Rules of Civil Procedure.
That Rule provides, “[i]f the plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any claim against it.” Fed. R.
Civ. P. 41(b). “[This] Rule has long been interpreted to permit courts to dismiss actions
sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure
or court’s orders.” Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)). Moreover, “[t]he ‘authority of a court
to dismiss sua sponte for lack of prosecution has generally been considered an inherent
power, governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.’ . . . [D]ismissal is an appropriate disposition against a party who disregards court
orders and fails to proceed as required by court rules.” United States ex rel. Jimenez v.
Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) (quoting Link, 370 U.S. at 630–31;
citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642–43 (1976)).
“A district court may dismiss an action under Rule 41(b) after finding that certain
enumerated criteria support a dismissal. These criteria include ‘(1) the degree of actual
prejudice to the defendant; (2) the amount of interference with the judicial process; (3)
the culpability of the litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy
of lesser sanctions.’” Olsen, 333 F.3d at 1204 (quoting Mobley v. McCormick, 40 F.3d
337, 340 (10th Cir. 1994)).
The Court finds that the above relevant criteria favor dismissal of this action. First,
Plaintiff's failure to cure the deficiencies identified in Judge Green’s order [Doc. No. 4],
and Plaintiff's failure to respond to that order have interfered with the judicial process,
requiring Judge Green and this Court to expend unnecessary resources and impairing the
Court’s management of its docket. As for culpability, Plaintiff has offered no justification
or explanation for his failure to comply with Court orders or cure his deficiencies.
Plaintiff was advised that dismissal was a possible sanction if the deficiencies were not
cured. [Doc. No. 4 at 2 (“Failure to comply with this Order may result in the dismissal of
this action.”)]. Finally, given Plaintiff's inaction in this case, the Court finds that no lesser
sanction would be effective.
While the Court is mindful that dismissal 1s an extreme sanction, the Court
concludes that such action is warranted in this case. Consequently, the Court ACCEPTS
the Report and Recommendation and DISMISSES this action WITHOUT PREJUDICE
to refiling pursuant to Rule 41(b) and the Court’s inherent power to manage its caseload
so as to achieve the orderly and expeditious disposition of cases.
IT IS SO ORDERED this 11th day of December 2023.
UNITED STATES DISTRICT JUDGE