Nemecek v. Johnson et al

Filing 8

ORDER ADOPTING 6 REPORT AND RECOMMENDATION . The Court DISMISSES Plaintiff's action without prejudice to refiling. Signed by Judge Jodi W. Dishman on 05/06/2022. (nv)

Case 5:22-cv-00144-JD Document 8 Filed 05/06/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CALEB E. NEMECEK,
Plaintiff,
v.
CONNIE JOHNSON, individual capacity
and as Head of OCDC, official capacity;
and AMANDA MERRIOTT, individual
capacity and as Head of Medical at
OCDC, official capacity,
Defendants.

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ORDER ADOPTING REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 brought by Plaintiff Caleb E.
Nemecek against Connie Johnson and Amanda Merriott in their official and individual
capacities. [Doc. No. 1]. Plaintiff, who alleges he is both a convicted and sentenced
federal prisoner and a pretrial detainee, alleges that the conditions of the Oklahoma
County Detention Center present health hazards in violation of his constitutional rights
and sues defendants for their alleged involvement. Plaintiff sought to proceed in his
action without prepayment of fees and costs. [Doc. No. 2]. This action was referred to
United States Magistrate Judge Shon T. Erwin for proceedings consistent with 28 U.S.C.
§ 636(b)(1). [Doc. No. 4].
On February 24, 2022, Judge Erwin granted Plaintiff’s request to proceed without
prepayment of the full filing fee but ordered Plaintiff to pay an initial partial filing fee of
$10.56 by March 14, 2022, in compliance with 28 U.S.C. § 1915(b)(1). [Doc. No. 5 at 1].

Case 5:22-cv-00144-JD Document 8 Filed 05/06/22 Page 2 of 3

The order further required that, after the initial partial filing fee, Plaintiff shall make
monthly payments until he has paid the fee of $350.00, as required by 28 U.S.C.
§ 1915(b)(2). [Id. at 2]. Plaintiff was cautioned that failure to pay the initial partial filing
fee by March 14, 2022, or show cause in writing for his failure to pay, would result in
dismissal of this action without prejudice to refiling. [Id. at 1].
After Plaintiff did not timely pay the initial filing fee or otherwise respond to his
order, Judge Erwin issued a Report and Recommendation on April 8, 2022,
recommending that this action be dismissed without prejudice for Plaintiff’s failure to
pay the initial filing fee. [Doc. No. 6]. Judge Erwin advised Plaintiff of his right to object
to the Report and Recommendation by April 25, 2022, and that Plaintiff’s failure to
timely object waives the right to appellate review of the factual findings and legal issues
in the Report and Recommendation. [Id. at 3]. Plaintiff has not filed any objection, nor
has he paid the required initial partial filing fee.1 See also LCvR3.4(a) (“Failure of any
applicant to pay the initial partial filing fee or any other payment ordered by the court by
the date specified, to seek a timely extension within which to make the payment, or to
show cause in writing by that date why the applicant cannot pay the fee shall be cause for
dismissal of the action without prejudice to refiling.”).

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The Court notes that the attempt to serve Plaintiff with the Report and
Recommendation at his address of record failed. [Doc. No. 7]. However, Plaintiff is
responsible for notifying the Court of any change of address, and “[p]apers sent by the
court will be deemed delivered if sent to the last known address given to the court.”
LCvR5.4; see Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999) (“The
parties are far better situated to know of any errors in their address information, thus, they
bear the burden of filing notice of a change of address . . . . The fact [plaintiff] is acting
pro se does not eliminate this burden.”).
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Case 5:22-cv-00144-JD Document 8 Filed 05/06/22 Page 3 of 3

The Court therefore ADOPTS the Report and Recommendation [Doc. No. 6] in its
entirety. The Court DISMISSES Plaintiff’s action without prejudice to refiling.
IT IS SO ORDERED this 6th day of May 2022.

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