Luginbyhl v. Red Rock Corrections Center et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:25-cv-01411-JD Document 6 Filed 01/08/26 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
LEVI LUGINBYHL,
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Plaintiff,
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V.
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Case No. CIV-25-1411-JD
RED ROCK CORRECTIONS )
CENTER et al.,
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Defendants.
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REPORT AND RECOMMENDATION
Plaintiff brought this civil rights complaint against the Red Rock Corrections Center and Chaplain Kennth Neher alleging religious discrimination. Doc. 1, at 6-7, 9.1 United States District Judge Jodi W. Dishman 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 order to pay the initial partial filing fee.
I. Discussion.
The Court granted Plaintiff's application to proceed in forma pauperis (IFP) on December 1, 2025. Docs. 2, 5. The Court ordered Plaintiff to make an
1 Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO
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initial payment of $9.25 by December 22, 2025. Doc. 5, at 1. The Court warned
Plaintiff that if he failed to timely pay the initial fee or show cause in writing
for his failure to pay, his case would be subject to dismissal without prejudice
to refiling. Id. at 2.
The Postmaster has not returned this Order to the Court, 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.”).
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.
Case 5:25-cv-01411-JD Document 6 Filed 01/08/26 Page 2 of 4

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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 Rules and order to 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.
Case 5:25-cv-01411-JD Document 6 Filed 01/08/26 Page 3 of 4

Case 5:25-cv-01411-JD Document 6 Filed 01/08/26 Page 4 of 4
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of this Court by January 29, 2026, 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 8th day of January, 2026.
Dizan Neo
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
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