McLemore v. Hett
MEMORANDUM AND ORDER ENTERED: This action is dismissed without prejudice for failure to state a claim on which relief can be granted. Signed by District Judge John W. Lungstrum on 02/05/24. Mailed to pro se party Jeffrey L. McLemore by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY L. MCLEMORE,
CASE NO. 23-3248-JWL
MEMORANDUM AND ORDER
Plaintiff Jeffrey L. McLemore is a state prisoner currently housed at the Saline County Jail
in Salina, Kansas. He filed this pro se § 1983 action, alleging that his constitutional right to access
the courts has been violated. (Doc. 1.)
On December 20, 2023, the Court issued a memorandum and order explaining that the
complaint failed to state a plausible claim for relief and that it sought, at least in part, unavailable
relief. (Doc. 6.) The Court explained that these deficiencies left this matter subject to dismissal
and granted Plaintiff to and including January 22, 2024, to file an amended complaint that cures
all the deficiencies. Id. The memorandum and order cautioned Plaintiff that if he “does not timely
file an amended complaint that cures the deficiencies discussed herein, this matter will be
dismissed without further prior notice to Plaintiff.” Id. at 7. As of the date of this order, the Court
has not received an amended complaint from Plaintiff.
The time in which Plaintiff was required to submit an amended complaint has passed
without Plaintiff doing so. As a consequence, the Court concludes that this action should be
dismissed without prejudice for failure to state a plausible claim on which relief can be granted,
for the reasons set forth in the Court’s previous memorandum and order.1
IT IS THEREFORE BY THE COURT ORDERED that this action is dismissed
without prejudice for failure to state a claim on which relief can be granted.
IT IS SO ORDERED.
Dated on this 5th day of February, 2024, in Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
The Court also notes that this matter also is subject to dismissal because Plaintiff has failed to comply
with the Court’s order that he timely pay the initial partial filing fee or move for an extension of time in
which to do so. (See Doc. 5 (ordering Plaintiff to pay an initial partial filing fee of $4.00 on or before
December 29, 2023).) 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. Appx. 764, 771 (10th
Cir. 2009) (citing Fed. R. Civ. P. 41(b)).
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