Detherage v. Johnson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSHUA T. DETHERAGE, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-257-G
)
TOMMY JOHNSON III, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, filed a civil rights complaint. (Doc. 1).
United States District Judge Charles B. Goodwin referred the matter to the undersigned
Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C).
(Doc. 5). Based on Plaintiff’s failure to cure deficiencies in his in forma pauperis motion,
the undersigned recommends that the Court DISMISS the action without prejudice to re-
filing.
I. 	Discussion
On February 20, 2026, the undersigned found the following deficiencies in
Plaintiff’s Application to Proceed In District Court Without Prepaying Fees or Costs (“In
Forma Pauperis” or “IFP Application”): (1) it was not on the proper form; (2) it was
missing financial information and/or signature of the authorized officer of the penal
institution; 	and (3) it was missing the certified copy of the statement(s) of Plaintiff’s
institutional account(s) for the six-month period immediately preceding filing, obtained
from the appropriate official of each penal institution or jail at which Plaintiff is or was
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confined. (Doc. 6, at 1). The Court ordered Plaintiff to cure these deficiencies on or before
March 13, 2026. 	(Id. at 2). 	The Court further advised Plaintiff that “[f]ailure to comply
with this Order may result in the dismissal of this action.” (Id.)
Plaintiff submitted a second IFP Application on March 12, 2026. (Doc. 7). While
this IFP Application was on the proper form, it did not contain the required signatures,
financial information, and account statements. 	(Id.) 	Plaintiff was ordered to cure these
deficiencies by April 3, 2026. (Doc. 8). The Court further advised Plaintiff that “[f]ailure
to comply with this Order may result in the dismissal of this action.” (Id. at 2). Plaintiff
has not cured these deficiencies, as ordered.
Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action if the
plaintiff “fails to prosecute or to comply with these rules or a court order.” 	The Tenth
Circuit “ha[s] consistently interpreted Rule 41(b) to permit courts to dismiss actions sua
sponte for a plaintiff’s failure to prosecute.” 	Huggins v. Supreme Court of the United
States, 480 F. App’x 915, 916-17 (10th Cir. 2012) (quotations omitted). If the dismissal is
without prejudice, the court generally need not follow any “particular procedures” in
entering the dismissal order. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs.,
Inc., 552 F.3d 1233, 1236 (10th Cir. 2009); see also Robledo-Valdez v. Smelser, 593 F.
App’x 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its
powers, dismiss a case without prejudice pursuant to Fed. R. Civ. P. 41(b) without attention
to any particular procedures).
Plaintiff’s failure to either pay the filing fee ($405.00) or to comply with the Court’s
Order leaves the Court unable “to achieve [an] orderly and expeditious” resolution of this
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action. Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power
of a court to dismiss suits for lack of prosecution on its own initiative). As outlined above,
the Court has provided Plaintiff sufficient notice of the possibility of dismissal, as well as
an additional response opportunity through objection to this Report and Recommendation.
Thus, considering the court’s right and responsibility to manage its cases, the undersigned
finds that Plaintiff’s failure to comply with the Court’s Order (Doc. 8) warrants a
recommendation that the Court dismiss this action without prejudice to the re-filing.
II. 	Recommendation and Notice of Right to Object
The undersigned recommends that this action be DISMISSED without prejudice to
the re-filing for Plaintiff’s failure to comply with the court’s order and failure to pay the
filing fee. 	Plaintiff is advised of his right to file an objection to this Report and
Recommendation with the Clerk of this Court by May 18, 2026, in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to make a timely objection to this
Report and Recommendation waives his right to appellate review of both factual and legal
issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge unless and until the matter is re-referred.
ENTERED this 27th day of April, 2026.
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