Loveless v. Jones

Filing 9

ORDER ADOPTING 8 Report and Recommendation and DISMISSING this action without prejudice. A separate judgment will follow. Signed by Judge Jodi W. Dishman on 3/11/25. (rp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRIS ELROY LOVELESS,
Plaintiff,
v.
RONALD RAY JONES, II,
Defendant.

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Case No. CIV-24-01235-JD

ORDER
Before the Court is the Report and Recommendation (“R. & R.”) issued by United
States Magistrate Judge Amanda Maxfield Green on January 28, 2025. [Doc. No. 8]. On
December 9, 2024, Judge Green issued an order requiring Plaintiff Chris Elroy Loveless
to cure the deficiencies in this action by either paying the filing fee or filing a motion to
proceed in forma pauperis by December 30, 2024. [Doc. No. 5]. The order notified
Loveless that failure to comply with the order could result in the dismissal of this action.
Id. at 2. Shortly after the court mailed that order to Loveless’s address on file, an earlier
mailing sent to Loveless was returned as undeliverable. [Doc. No. 6]. Even though
Loveless neglected his responsibility to notify the court of his change of address, see
Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999), he filed a Notice of
Change of Address in another action referred to Judge Green, so she sua sponte extended
Loveless’s deadline to cure to January 21, 2025, and remailed the December 9 order to
Loveless’s new address. [Doc. No. 7].
Because Loveless did not pay the filing fee or file a motion to proceed in forma

pauperis by the January 21 deadline, Judge Green recommends dismissing this action
without prejudice to refiling. R. & R. at 2 (first citing Fed. R. Civ. P. 41(b); and then
citing Link v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962)). The R. & R. advised
Loveless of his right to object by February 18, 2025, and warned that failure to file a
timely objection would waive the right to appellate review of the factual and legal issues
in the R. & R. Id. at 2–3. Loveless did not file an objection or request an extension of
time to do so.
“[A] party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996). The Tenth Circuit has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate.” Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991). This rule “provides that the failure to make timely objection to
the magistrate’s findings or recommendations waives appellate review of both factual and
legal questions.” Id. There are two exceptions to the waiver rule: “when (1) a pro se
litigant has not been informed of the time period for objecting and the consequences of
failing to object, or when (2) the ‘interests of justice’ require review.” MoralesFernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (quoting Moore, 950 F.2d at
659). The Tenth Circuit has considered various factors to determine whether the interests
of justice require review; these factors include “[1] a pro se litigant’s effort to comply, [2]
the force and plausibility of the explanation for his failure to comply, and [3] the
importance of the issues raised.’” Id. at 1120.
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Here, the R. & R. informed Loveless of both the time period for objecting and the
consequences of failing to object. See R. & R. at 2–3. The interests of justice do not
require review because the R.& R. was mailed to Loveless’s new address on January 28,
2025, and the Court has no evidence of Loveless’s effort to comply or an explanation for
his failure to comply. Thus, the firm waiver rule applies, and Loveless has waived his
right to challenge the R. & R. 1
Therefore, the Court ACCEPTS the R. & R. [Doc. No. 8] and DISMISSES this
action without prejudice. A separate judgment will follow.
IT IS SO ORDERED this 11th day of March 2025.

Alternatively, even if the Court were to review this matter de novo, it agrees with
Judge Green’s analysis and conclusion that Loveless’s action should be dismissed under
Federal Rule of Civil Procedure 41(b) for failure to prosecute his action or failure to
comply with a court order. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)
(citing Link, 370 U.S. at 630–31) (“Although the language of Rule 41(b) requires that the
defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to
dismiss actions sua sponte for a plaintiff’s failure to prosecute or comply with the rules of
civil procedure or court’s orders.”).
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