Burnett v. Easter

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FRANK JAMES BURNETT, Plaintiff, v. CASE NO. 20-3171-SAC JEFF EASTER, et al., Defendants.

O R D E R Plaintiff, Frank James Burnett, who is currently detained at the Sedgwick County Adult Detention Center in Wichita, Kansas, brings this civil rights case against Sedgwick County Sheriff Jeff Easter and the Sedgwick County District Court Judges. On June 26, 2020, the Court entered an Order (Doc. 3) denying Plaintiff’s motion for leave to proceed in forma pauperis, finding Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g), and granting Plaintiff until July 17, 2020, in which to pay the filing fee in this case. The Court examined the Complaint and found no showing of imminent danger of serious physical injury.

The Court’s order provided that “[t]he failure to submit the fee by that date will result in the dismissal of this matter without prejudice and without additional prior notice.” On July 10, 2020, the Court entered an Order (Doc. 5) granting Plaintiff an extension of time to August 17, 2020, to submit the filing fee. That order also provided that “[t]he failure to submit the fee by that date will result in the dismissal of this matter without prejudice and without additional prior notice.” Plaintiff has failed to pay the filing fee by the deadline set forth in the order.

Rule 41(b) of the Federal Rules of Civil Procedure “authorizes a district court, upon a defendant’s motion, to order the dismissal of an action for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or ‘a court order.’” Young v. U.S., 316 F. App’x 764, 771 (10th Cir. 2009) (citing Fed. R. Civ. P. 41(b)). “This rule has been interpreted as permitting district courts to dismiss actions sua sponte when one of these conditions is met.” Id. (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)). “In addition, it is well established in this circuit that a district court is not obligated to follow any particular procedures when dismissing an action without prejudice under Rule 41(b).” Young, 316 F. App’x at 771–72 (citations omitted).

The time in which Plaintiff was required to submit the filing fee has passed without a response from Plaintiff. As a consequence, the Court dismisses this action without prejudice pursuant to Rule 41(b) for failure to comply with court orders.

IT IS THEREFORE BY THE COURT ORDERED that this action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

Dated August 18, 2020, in Topeka, Kansas.

s/ Sam A. Crow SAM A. CROW U. S. Senior District Judge