Davis (ID 06598) v. Zmuda et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Signed by U.S. Senior District Judge Sam A. Crow on 11/18/21. Mailed to pro se party Anthony Leroy Davis by regular mail. (smnd)

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Case 5:21-cv-03247-SAC Document 5 Filed 11/18/21 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ANTHONY LEROY DAVIS, Plaintiff, v. CASE NO. 21-3247-SAC JEFF ZMUDA, et al., Defendants. MEMORANDUM AND ORDER Plaintiff, Anthony Leroy Davis, who is currently incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas, brings this pro se civil rights case under 42 U.S.C. § 1983. The Court entered a Memorandum and 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 November 17, 2021, to submit the $402.00 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. 4, at 2.) Plaintiff has failed to pay the filing fee by the deadline set forth in the Memorandum and 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 1    Case 5:21-cv-03247-SAC Document 5 Filed 11/18/21 Page 2 of 2 764, 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 in which Plaintiff was required to submit the filing fee has passed without a 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 November 18, 2021, in Topeka, Kansas. s/ Sam A. Crow SAM A. CROW U. S. Senior District Judge 2   

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