Goolsby v. English

Filing 8

ORDER ENTERED: this action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Signed by U.S. District Senior Judge Sam A. Crow on 10/4/17. Mailed to pro se party James Earl Goolsby by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES EARL GOOLSBY,
Plaintiffs,
v.

CASE NO. 17-3120-SAC

NICOLE ENGLISH, et al.,
Defendants.

ORDER
Plaintiff James Earl Goolsby, is a prisoner housed at USP Leavenworth in Leavenworth,
Kansas. Plaintiff filed this matter as a petition for writ of habeas corpus under 28 U.S.C. § 2241.
On July 27, 2017, the Court entered an Order (Doc. 5), finding that Plaintiff cannot challenge the
denial of medical treatment in a habeas corpus action. The Court held that Plaintiff must
proceed, if at all, in a civil rights action filed pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 5, at 2.) The Order granted Plaintiff
until August 25, 2017, to advise the Court whether he intends to proceed under Bivens, advising
Plaintiff that based on his pending motion to proceed in forma pauperis, he would owe an initial
partial filing fee of $54.00. Id. Plaintiff filed a Bivens Complaint on August 29, 2017. (Doc. 6.)
On August 29, 2017, the Court entered an order (Doc. 7) granting Plaintiff’s motion to
proceed in forma pauperis, and assessed an initial partial filing fee of $54.00. The Order
provided that failure to pay the partial fee within fourteen days from receipt of the order “may
result in the dismissal of this matter without further notice.” The Order also provided that any
objection to the Order must be filed on or before the date payment is due. To date, Plaintiff has
not submitted the partial fee or filed an objection to the fee order.
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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 for Plaintiff to pay the partial fee has passed without any 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 on this 4th day of October, 2017, in Topeka, Kansas.

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

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