SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, initiated this action under 42 U.S.C. § 1983 on April 27, 2023. Doc. 1.United States District Judge Stephen P. Friot referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to follow the Court's orders-specifically, his failure to timely pay the statutorily required initial partial payment.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Discussion.
Upon initiation of this suit, Plaintiff applied to proceed in forma pauperis, under 28 U.S.C. § 1915. Doc. 3. The filing fee in civil cases is $402.00.
The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $52.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
A prisoner proceeding in forma pauperis must pay an initial filing fee of twenty percent of the greater of “the average monthly deposits to the prisoner's account” or “the average monthly balance in the prisoner's account for the [six]-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b)(1). Plaintiff's statement of institutional accounts showed that the average monthly deposit into his accounts for the previous six months was $53.00, and the average monthly balance for that period was the same. Doc. 3, at 3-4. The Court therefore ordered Plaintiff to make an initial filing fee of $10.60, or twenty percent of his average monthly deposit, by May 24, 2023. Doc. 5. In that order, the Court advised Plaintiff that failure to pay could result in the dismissal of his complaint without prejudice. Id. at 2. To date, Plaintiff has not paid the initial filing fee.
Although Petitioner attested to the prison official's representation that his average monthly balance was $53.00, the attached balance statement shows it was actually $17.92. Doc. 3, Att. 1. Under § 1915(b)(1), Plaintiff's initial partial payment is still based on the larger amount-the $53.00 average deposit.
The Clerk of Court mailed a copy of the order to the address Plaintiff had provided the Court. Under Local Civil Rule 5.4, it is a pro se litigant's responsibility to notify the court and opposing parties of any change of address. LCvR5.4(a). “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id. Further, there is no indication the order to supplement went undelivered as it has not been returned to the Clerk of Court as undeliverable.
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 Fed.Appx. 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.
Plaintiff appears pro se; still 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). The undersigned finds that Plaintiff's inaction and failure to comply with its order to cure the deficiencies in his in forma pauperis application 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). The undersigned concludes, therefore, that dismissal of this action without prejudice to refiling is warranted under Rule 41(b).
The undersigned thus recommends that the Court dismiss this case. See LCvR3.3(e).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this case without prejudice.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before June 22, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.