Brown v. Oklahoma State of

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

EDWARD R. BROWN, SR., )

)

Plaintiff, )

)

v. ) Case No. CIV-25-296-SLP

)

STATE OF OKLAHOMA et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff brought this civil rights complaint against the State of

Oklahoma and the Comanche County District Attorney. Doc. 1.1 United States

District Judge Scott L. Palk referred the matter to the undersigned Magistrate

Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Doc. 4.

The undersigned recommends the Court dismiss the complaint without

prejudice based on Plaintiff’s failure to follow the Court’s rules and orders and

pay the initial partial filing fee.

I. Discussion.

The Court ordered Plaintiff to either pay the filing fee or submit an in

forma pauperis (IFP) application to the Court by March 31, 2025. Doc. 5. The

Clerk of Court sent the order and the necessary forms to comply with the

1 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

Court’s order to Plaintiff’s last known address. Id. (staff notes). Plaintiff

submitted an IFP motion on March 17, 2025. Doc. 6. But it was deficient, and

the Court denied it. Doc. 7, at 1. The Court granted Plaintiff one more chance

to submit a conforming IFP motion by April 14, 2025. Id. The Court warned

Plaintiff that a failure to comply would result in the undersigned

recommending dismissal of this action. Id.

The Clerk of Court mailed this order along with the forms necessary to

comply with the order to Plaintiff’s last known address at the Comanche

County Detention Center and later, after the Postmaster returned some mail

to the Court, remailed it to Plaintiff at the Oklahoma State Reformatory. Id.

(staff notes); see Doc. 8 (staff notes); see also Docs. 9-10.

Plaintiff received one of these orders because he filed a second IFP

motion on April 10, 2025. Doc. 11. The Court granted the motion and ordered

Plaintiff to pay an initial partial filing fee by May 13, 2025. Doc. 12; see 28

U.S.C § 1915(b)(1). The Court warned Plaintiff that failure to timely pay could

result in the dismissal of the complaint without prejudice. Doc. 12, at 1-2.

The Clerk of Court mailed the order to Plaintiff at both addresses even

though Plaintiff had not submitted a change of address form. Id. (staff notes).

The Postmaster returned the mail sent to the Oklahoma State Reformatory to

the Court stamped “Refused” on May 6, 2025. Doc. 13. The Postmaster has not

returned the mail sent to the Comanche County Detention Center, so the Court

deems it delivered to Plaintiff. See LCvR5.4 (“Papers sent by the court will be

deemed delivered if sent to the last known address given to the court.”).2

To date, Plaintiff has not paid the initial partial filing fee. He also has

not sought an extension of time or shown good cause for his failure to pay.

Under Fed. R. Civ. P. 41(b), a court may dismiss an action if the plaintiff

“fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ.

P. 41(b). Courts have consistently interpreted this rule to permit sua sponte

dismissal. Huggins v. Sup. Ct. of the U.S., 480 F. App’x 915, 916-17 (10th

Cir. 2012); 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.” (quoting Reed v. Bennett, 312

F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without prejudice, the

court may dismiss without attention to the non-exhaustive list of factors that,

by contrast, must inform a dismissal with prejudice. AdvantEdge Bus.

Grp., 552 F.3d at 1236 & n.2.

2 Although the Oklahoma Department of Corrections’ website currently

lists Plaintiff as residing at the Oklahoma State Reformatory, see

https://okoffender.doc.ok.gov/ (last visited May 19, 2025), the only address

Plaintiff has provided to the Court is that of the Comanche County Detention

Center. See Doc. 11, Att. 2 (envelope).

Plaintiff appears pro se, but he must follow the same rules as any other

litigant. See Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir.

2007) (holding a pro se litigant “to the same rules of procedure as other

litigants”). The undersigned finds that Plaintiff’s failure to comply with this

Court’s orders and rules or pay the initial partial filing fee have left the Court

without the ability “to achieve an orderly and expeditious” resolution of this

case. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the

inherent power of a court to dismiss suits for lack of prosecution); see also

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2 (10th Cir.

2007) (noting Rule 41(b) permits courts “to dismiss actions sua sponte for a

plaintiff’s failure to . . . comply with the rules of civil procedures or court’s

orders”). The undersigned concludes, therefore, that dismissal of this action

without prejudice to refiling is warranted under Rule 41(b) and LCvR3.3(e)

(“Failure to pay the filing fees by the date specified, to seek a timely extension

within which to make the payment, or to show cause in writing by the date

specified for payment shall be cause for dismissal of the action without

prejudice to refiling.”).

II. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

dismiss this action without prejudice.

The undersigned advises Plaintiff of his right to file an objection to this

Report and Recommendation with the Clerk of this Court by June 12, 2025, in

accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The

undersigned further advises Plaintiff that failure to make timely objection to

this Report and Recommendation waives his right to appellate review of both

factual and legal questions contained herein. Moore v. United States, 950 F.2d

656, 659 (10th Cir. 1991). This Report and Recommendation disposes of the

issues referred to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 22nd day of May, 2025.

Aga Liter _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE