Mitchell v. Groh et al

Filing 7

ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayments of fees is granted. This action is dismissed, without prejudice, on account of plaintiff's failure to comply with the court's Memorandum and Order entered on April 15, 2011. Signed by Senior District Judge Sam A. Crow on 8/2/2011. (Mailed to pro se party Marcus D. Mitchell, Sr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARCUS D. MITCHELL, Sr.
Plaintiff,
v.

CASE NO.

11-3063-SAC

JOHN GROH,
et al.,
Defendants.
O R D E R
Upon

screening

the

complaint

filed

herein,

the

court

entered a Memorandum and Order on April 15, 2011, setting forth
deficiencies in the complaint.

Mr. Mitchell was ordered to submit

the requisite financial information to support his motion to
proceed without prepayment of fees, and to show cause why this
action should not be dismissed.
In response to the court’s Memorandum and Order, plaintiff
has submitted financial records from the Sedgwick County Detention
Facility for December 5, 2010 through April 2, 2011.

These

indicate that plaintiff had sufficient deposits and balances to be
assessed a partial filing fee.
released from custody.

However, he apparently has been

For the sole purpose of dismissing this

action, the court finds that plaintiff is not required to pay an
initial partial filing fee and should not be assessed the full
filing fee at this time.
Plaintiff has not responded in any manner to the court’s

Order that he show cause why this action should not be dismissed
for the reasons stated in its Memorandum and Order of April 15,
2011.

“Rule 41(b) authorizes a district court, upon a defendant’s

motion,

to

order

the

dismissal

of

an

action

for

failure

to

prosecute as well as for failure to comply with the Federal Rules
of Civil Procedure or ‘a court order’.”

Young v. U.S., 316

Fed.Appx. 764, 771 (10th Cir. Mar. 12, 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).
at *6 (citations omitted).

Id.

The court finds that this action must

be dismissed pursuant to Rule 41(b) on account of plaintiff’s
failure to comply with the court’s prior Memorandum and Order
requiring

him

to

show

cause

why

this

action

should

not

be

dismissed.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s
Motion

to Proceed Without Prepayment of Fees (Doc. 2) is granted

based upon the information currently before the court and for the
sole purpose of dismissing this action.
IT IS FURTHER ORDERED that this action is dismissed,
without prejudice, on account of plaintiff’s failure to comply with

2

the court’s Memorandum and Order entered on April 15, 2011.
IT IS SO ORDERED.
Dated this 2nd day of August, 2011, at Topeka, Kansas.

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

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