Luginbyhl v. Red Rock Corrections Center et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LEVI LUGINBYHL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-01411-JD
)
RED ROCK CORRECTIONS CENTER 	)
and NEHR KENNTH, Chaplain, 	)
)
Defendants. 	)
ORDER
Before the Court is Judge Suzanne Mitchell’s Report and Recommendation [Doc.
No. 6], to which Plaintiff Levi Luginbyhl (“Plaintiff”) objected [Doc. No. 7]. As discussed
below, the Court accepts and adopts the Report and Recommendation (“R. & R.”).
Plaintiff, proceeding pro se and in forma pauperis, filed this case against various
defendants, including Red Rock Corrections Center, where he is incarcerated. [Doc. No.
1]. The Court referred this action to Judge Mitchell for preliminary proceedings under 28
U.S.C. § 636(b)(1)(B) and (C). [Doc. No. 4].
The R. & R. recommends dismissing Plaintiff’s Complaint without prejudice for
failure to comply with the Court’s Rules and Order of December 1, 2025, to pay the
initial partial filing fee. [Doc. No. 6 at 1–3]. The R. & R. advised Plaintiff of his right to
object by January 29, 2026, 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 4].
Plaintiff filed a timely objection. [Doc. No. 7].
Plaintiff objects to the R. & R., stating that he submitted a request to access his
Case 5:25-cv-01411-JD Document 8 Filed 01/30/26 Page 1 of 4

2
savings to pay the partial filing fee but that the staff had not responded to his request, thus
prohibiting him from paying the partial filing fee. [Doc. No. 7 at 1]. He asserts his
inability to timely pay the fee was due to no fault of his own and requests that the Court
grant him an extension to pay the fee. [Id.].
“[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). A specific objection “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. The Court
reviews de novo the objected-to portions of the R. & R. See 28 U.S.C. § 636(b)(1) (“A
judge of the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”). When an
objection is improper (objections that are not timely or specific), the Court may review
the R. & R. under any standard it deems appropriate. Cisneros v. Gomez, No. CIV-21-
825-PRW, 2023 WL 2543435, at *1 (W.D. Okla. Mar. 16, 2023) (citing Summers v.
Utah, 927 F.2d 1165, 1167–68 (10th Cir. 1991)). The Court will construe Plaintiff’s
objections liberally because he is proceeding pro se, but the Court cannot serve as
Plaintiff’s advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court addresses Plaintiff’s objection that his failure to pay the partial filing
fee was due to no fault of his own. The Court granted Plaintiff’s Motion for Leave to
Proceed In Forma Pauperis to the extent that the Court found that he was “entitled to
proceed without prepayment of the full filing fee.” [Doc. No. 5 at 1]. The Court ordered
Case 5:25-cv-01411-JD Document 8 Filed 01/30/26 Page 2 of 4

3
him to pay the initial partial filing fee by December 22, 2025. [Id.]. With his objection,
Plaintiff submitted the form he completed requesting access to money from his prison
accounts to pay the fee. [Doc. No. 7-1]. The form indicates that, after he originally
submitted it, the staff returned his form because it lacked his signature. [Id.]. The staff
returned the form before the date his partial filing fee was due. [Id.]. Accordingly,
Plaintiff had an opportunity to move for an extension of time to pay the partial filing fee
and failed to do so. See 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.”); Order of Dec. 1, 2025 [Doc. No. 5 at 1–2] (warning
Plaintiff that “[i]f by [December 22, 2025] “Plaintiff has failed to pay the initial partial
filing fee or failed to show cause in writing for the failure to pay, this action will be
subject to dismissal without prejudice to refiling, and no fees or costs will be imposed or
collected”) (emphasis added). Plaintiff does not explain in his objection why he was
prohibited from timely seeking an extension to make payment, following the Court Rules
and the Court’s Order. Additionally, the form submitted by Plaintiff does not demonstrate
that Plaintiff ever properly resubmitted it, contrary to Plaintiff’s assertion that he did so.
[Doc. No. 7 at 1]. The form submitted by Plaintiff demonstrates that the staff returned it
to Plaintiff because it lacked his signature. [Doc. No. 7-1]. Plaintiff has not filed anything
demonstrating he resubmitted the form, with a signature, before the date the partial filing
fee was due, or why he could not have sought an extension by Judge Mitchell by her
Case 5:25-cv-01411-JD Document 8 Filed 01/30/26 Page 3 of 4

4
deadline or before she issued the R. & R. The Court, therefore, concludes that Plaintiff
has not shown that he failed to comply through no fault of his own, as he states in his
objection, and overrules his objection. [Doc. No. 7 at 1]. The Court is obligated to
construe Plaintiff’s filings liberally because he is proceeding pro se but must hold pro se
litigants “to the same rules of procedure as other litigants.” Davis v. Kan. Dep’t of Corr.,
507 F.3d 1246, 1247 n.1 (10th Cir. 2007); see also Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (same).
For the reasons outlined above, the Court overrules Plaintiff’s objection, and the
Court ACCEPTS and ADOPTS the R. & R. [Doc. No. 6]. The Court dismisses Plaintiff’s
Complaint without prejudice to refiling. A separate judgment will follow.
IT IS SO ORDERED this 30th day of January 2026.
Case 5:25-cv-01411-JD Document 8 Filed 01/30/26 Page 4 of 4