McDermott v. Seminole District Court et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
DAVID B. MCDERMOTT, II, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-23-149-JFH-JAR
)
SEMINOLE DISTRICT COURT, et al., 	)
)
Defendants. 	)
FINDINGS AND RECOMMENDATION
This matter comes before the Court on a review for Plaintiff’s compliance
with this Court’s Order directing that the filing fee be paid in installments
entered February 7, 2024. 	This case was referred to the undersigned by United
States District Judge John F. Heil, III, who presides over this case.
Plaintiff initiated this case acting pro se on May 5, 2023. 	In the barest of
Complaints, Plaintiff poses a series of questions which do not actually state an
actionable claim. 	However, upon Plaintiff’s Motion, the Court permitted Plaintiff
to pay the required filing fee in $50.00 installments, to be paid “each Monday to
the 	court 	clerk 	until 	the 	filing 	fee 	is 	paid 	for 	in 	full.” 	Doc. Ent. No. 19.
Additionally, the Court directed in the same Order that “[a]fter the filing fee is
paid in full and the Plaintiff has filed his typed lawsuit, restyled it and prepared
his service forms (USM-285) to serve the Defendants with, then the case can be
advanced.” 	Id.
Plaintiff made one payment toward the filing fee on February 20, 2024 of
$100.00. 	To date, no further payment has been made. 	Indeed, Plaintiff has
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taken 	no 	further 	action 	to 	advance 	this 	lawsuit, 	including 	filing 	a 	typed
Complaint or providing the Clerk with completed USM-285 forms.
Plaintiff has failed to pay the complete filing fee for this case and has failed
to comply with an Order of this Court. 	Accordingly, Plaintiff has failed to
prosecute this action. 	“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.” 	AdvantEdge Bus. Grp. v. Thomas E. Mestmaker &
Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) quoting Reed v. Bennett, 312
F.3d 1190, 1195 (10th Cir. 2002). 	Indeed, the Tenth Circuit “ha[s] consistently
interpreted Rule 41(b) to permit courts to dismiss actions sua sponte for a
[party's] failure to prosecute.” 	Huggins v. Supreme Court of the United States,
480 F. App'x 915, 916-17 (10th Cir. 2012) (quotations omitted).
When dismissing a case without prejudice, “a district court may, without
abusing its discretion, enter such an order without attention to any particular
procedures.” 	Id. quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 	1162 	(10th 	Cir. 	2007). 	Since 	Plaintiff 	has 	failed 	to 	complete 	the
prerequisite act of paying the filing fee to commence and continue this action
and 	has 	failed 	to 	comply 	with 	the 	Order 	of 	the 	Court, 	this 	Court 	would
recommend that the case be dismissed without prejudice without further notice
or hearing since Plaintiff was already provided with the unusual opportunity to
pay in installments.
IT IS THE RECOMMENDATION OF THE UNDERSIGNED that this action
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be DISMISSED WITHOUT PREJUDICE to refiling based upon Plaintiff’s failure
to prosecute the case and the failure to comply with this Court’s Order.
Plaintiff is given fourteen (14) days from the date of the service of these
Findings and Recommendation to file any objections to them with the Clerk of
the Court. 	Any such objection shall be limited to ten (10) pages in length. 	The
failure to object to the Findings and Recommendation within fourteen (14) days
will preclude their review. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
IT IS SO ORDERED this 17th day of February, 2026.
______________________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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