Davis (ID 06598) v. Colyer et al

Filing 7

ORDER ENTERED: This action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Plaintiff's motion for pretrial conference 6 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 04/25/18. Mailed to pro se party Anthony Leroy Davis by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY LEROY DAVIS,
Plaintiff,
v.

CASE NO. 18-3051-SAC

JEFF COLYER, et al.,
Defendants.

ORDER
Plaintiff, Anthony Leroy Davis, is a state prisoner housed at Hutchinson Correctional
Facility. Plaintiff filed this §1983 action against Jeff Colyer, Governor of the State of Kansas, and
Derek Schmidt, Kansas Attorney General, primarily alleging an unauthorized withdrawal from his
inmate account.
The Court entered an Order (Doc. 4) denying Plaintiff’s motion to proceed in forma
pauperis, finding Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g).
The Court examined the Complaint and attachments and found no showing of imminent danger of
serious physical injury. The Court also granted Plaintiff until April 6, 2018, to submit the $400.00
filing fee. 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.” (Doc. 7, at
2.) 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
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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 Plaintiff
paying the filing fee as ordered by the Court. Plaintiff did file a response (Doc. 8) in which he
attempts to amend his Complaint. However, the proposed amended complaint still contains no
showing of imminent danger of serious physical injury. As a consequence, the Court dismisses
this action without prejudice pursuant to Rule 41(b) for failure to comply with court orders.
Plaintiff also filed a motion for pretrial conference and scheduling order (Doc. 6). This
motion is denied as moot.
IT IS THEREFORE BY THE COURT ORDERED that this action is dismissed
without prejudice pursuant to Fed. R. Civ. P. 41(b).
IT IS FURTHER ORDERED that Plaintiff’s motion for pretrial conference (Doc. 6) is
denied.
IT IS SO ORDERED.
Dated on this 25th day of April, 2018, in Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U. S. Senior District Judge

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