Sears v. Sawicki

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRUCE SEARS, Plaintiff, v. CASE NO. 24-3186-JWL J. SAWICKI, et al., Defendants.

MEMORANDUM AND ORDER Plaintiff, a federal prisoner, brings this pro se civil rights action under 28 U.S.C. § 1331.

Plaintiff is incarcerated at FCI-Leavenworth in Leavenworth, Kansas. On October 29, 2024, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis and assessed an initial partial filing fee in the amount of $14.50, calculated under 28 U.S.C. § 1915(b)(1). (Doc. 4.) The order provides that the failure to pay the initial partial filing fee or file an objection by November 12, 2024, “may result in the dismissal of this matter without further notice.” Id. Plaintiff has failed to pay the fee or file an objection by the Court’s deadline.

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).

Plaintiff has failed to submit the initial partial filing fee or to file an objection by the Court’s deadline.

IT IS THEREFORE ORDERED THAT this matter is dismissed without prejudice under Fed. R. Civ. P. 41(b).

IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Appoint Counsel (Doc. 3) is denied as moot.

IT IS SO ORDERED.

Dated November 21, 2024, in Kansas City, Kansas.

S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE