Derick Wewerka v. Don Roper, et al

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and DUANE BENTON (UNPUBLISHED) [3834992] [11-1211]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1211
___________
Derick Wewerka,

*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the Eastern
* District of Missouri.
Don Roper, Superintendent;
*
Unknown Huffman; Unknown West;
* [UNPUBLISHED]
Martin; CO Clubbs; PCC Delasmit,
*
*
Appellees,
*
*
Carl Taylor; Willie Williams,
*
*
Defendants,
*
*
Linda Roberts; Sandra Beedle,
*
Nurse; Dale Persch; Carl L. Omer,
*
Asst. Warden; Malloy, Mrs.,
*
*
Appellees.
*
___________
Submitted: September 28, 2011
Filed: October 3, 2011
___________
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
PER CURIAM.

Appellate Case: 11-1211

Page: 1

Date Filed: 10/03/2011 Entry ID: 3834992

Inmate Derick Wewerka appeals the district court’s1 order dismissing his 42
U.S.C. § 1983 action, without prejudice. The court dismissed the complaint under
Federal Rule of Civil Procedure 41(b) for failure to prosecute, based on Wewerka’s
failure to obey a court order requiring him to pay an initial partial filing fee; or
alternatively under 42 U.S.C. § 1997e(a) for failure to exhaust his administrative
remedies. Upon careful review, this court concludes that the district court did not
abuse its discretion based on Wewerka’s failure to pay the initial partial filing fee as
ordered: he failed to do so for over seven months; he never notified the court of any
reason for his noncompliance; and on appeal he does not address the issue. See Smith
v. Gold Dust Casino, 526 F.3d 402, 404-05 (8th Cir. 2008) (standard of review);
Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (if inmate has means to pay
partial filing fee and fails to do so, district court may dismiss action under Rule 41(b)
for noncompliance with court order); Schooley v. Kennedy, 712 F.2d 372, 374 (8th
Cir. 1983) (per curiam) (Rule 41(b) dismissal without prejudice militates against
finding abuse of discretion). Thus, this court does not need to discuss the
administrative-exhaustion issue.
This court affirms.
______________________________

1

The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
-2-

Appellate Case: 11-1211

Page: 2

Date Filed: 10/03/2011 Entry ID: 3834992