Knight v. United States Office of Personnel Management et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHYLLIS M. KNIGHT, )
)
Plaintiff, )
)
v. ) Case No. 23-1193-DDC-GEB
)
UNITED STATES OFFICE OF PERSONNEL )
MANAGEMENT and COMMISSIONER OF )
THE SOCIAL SECURITY )
ADMINISTRATION. )
)
Defendants. )
)
REPORT AND RECOMMENDATION
I. Notice
Within fourteen (14) days after a party is served with a copy of this Report and
Recommendation, any party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2), file written objections to this Report and Recommendation. A party must file any
objections within the fourteen-day period if the party wants to have appellate review of the
proposed findings of fact, conclusions of law, or recommended disposition.
II. Report and Recommendation of Dismissal
Plaintiff filed her Complaint (ECF No. 1) on September 12, 2023, and
simultaneously filed a Motion to Proceed without Prepayment of Fees (ECF No. 3, sealed).
On January 4, 2024, the undersigned recommended Plaintiff’s Motion (ECF No. 3, sealed)
be denied by the District Judge and further recommended dismissal of all of Plaintiff’s
claims, with the exception of her 5 U.S.C. § 552a(g)(1)(A) claims, for failure to state a
Case 6:23-cv-01193-DDC-GEB Document 26 Filed 03/03/26 Page 1 of 3

cause of action.1 Then, on October 24, 2024, District Judge Daniel D. Crabtree affirmed
and adopted the Report and Recommendation dismissing all Plaintiff’s claims except her
claim under 5 U.S.C. § 552a(g)(1)(A), allowing the claim to proceed by paying the filing
fee in seven monthly installments of $50 and one final installment of $52.2 Plaintiff then
noticed an appeal of the order on December 2, 2024.3 On May 19, 2025, Judge Crabtree
denied Plaintiff’s Motion for Leave to Appeal In Forma Pauperis.4 On August 18, 2025,
the Tenth Circuit Court of Appeals affirmed Judge Crabtree’s order denying Plaintiff IFP
status for her appeal.5 Every Memorandum and Order in the matter to date granted Plaintiff
the ability to proceed with her claim under 5 U.S.C. § 552a(g)(1)(A) after making
installment payments of the filing fee. To date, Plaintiff has not made any installment
payments.
Plaintiff commenced this action and, as a party to it, has an obligation to actively
pursue and participate in the case. Fed. R. Civ. P. 41(b) allows dismissal of a lawsuit if “the
plaintiff fails to prosecute or to comply with these rules or a court order.”6 Plaintiff has
failed to make any payments of the filing fee in this action, as contemplated in the Court’s
1 ECF No. 9.
2 ECF No. 13.
3 ECF No. 14.
4 ECF No. 21.
5 ECF No. 25.
6 A&J Mfg., LLC v. L.A.D. Glob. Enterprises, Inc., No. 19-2009-KHV, 2020 WL 2495918, at *1
(D. Kan. May 14, 2020) (“Pursuant to Rule 41(b), Fed. R. Civ. P., the Court can dismiss an action
sua sponte for failure to prosecute or for failure to comply with a court order. . . When the dismissal
is without prejudice, ‘it is well established in this circuit that a district court is not obligated to
follow any particular procedures.’”) (citing Young v. United States, 316 F. App'x 764, 771, 772
(10th Cir. 2009)); Gross v. Dunn, No. 18-3018-SAC, 2018 WL 5807117, at *1 (D. Kan. Nov. 6,
2018).
Case 6:23-cv-01193-DDC-GEB Document 26 Filed 03/03/26 Page 2 of 3

prior orders, and the matter has been open since September 2023. Without any action
towards pursuing her remaining claim under 5 U.S.C. § 552a(g)(1)(A), Plaintiff has failed
to prosecute her case.7 Accordingly, IT IS THEREFORE RECOMMENDED Plaintiff’s
claims be dismissed for failure to prosecute per Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
Dated this 3rd day of March 2026, at Wichita, Kansas.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
7 See Akers v. Flannigan, No. 20-3225-HLT, 2020 WL 6742788, at *2 (D. Kan. Nov. 17, 2020)
(“And because the deadline for Plaintiff to submit the filing fee has passed and no filing fee has
been submitted, this action must be dismissed without prejudice for failure to pay the filing
fee.”); Holt v. Norwood, No. 18-3284-SAC, 2020 WL 9171198, at *1 (D. Kan. Jan. 27, 2020)
(citing Young, 316 F. App'x at 771); Lynn v. Price, No. 19-3125-DDC, 2019 WL 4670210, at *2
(D. Kan. Sept. 25, 2019) (“Plaintiff has failed to submit the required filing fee by the court's
deadline. As a consequence, the court dismisses this action without prejudice pursuant to Rule
41(b) for failure to comply with court orders.”).
Case 6:23-cv-01193-DDC-GEB Document 26 Filed 03/03/26 Page 3 of 3