Opinion
22-3175-JWL-JPO
09-30-2022
MICHAEL STEVEN GORBEY, Plaintiff, v. JOHN OR JANE DOE, REGIONAL DIRECTOR, ET AL., Defendants
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff, a federal prisoner housed at USP-Thomson, Thomson, Illinois, filed this civil rights action against two unnamed employees of the Bureau of Prisons Regional Office in Kansas City, Kansas, challenging their rejection of grievances submitted as emergency matters.
On August 24, 2022, the court entered an order (Doc. 7) denying plaintiff's motion to proceed in forma pauperis, finding he 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 September 23, 2022, to submit the $402.00 filing fee.
On September 6, 2022, plaintiff filed an interlocutory notice of appeal (Doc. 8). The court declined to certify the appeal under 28 U.S.C. § 1292(b) and advised plaintiff that this matter would not be stayed. Plaintiff has failed to pay the filing fee as directed.
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 Fed.Appx. 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 Fed.Appx. 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 a court order.
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 plaintiff's motion for a temporary restraining order or preliminary injunction (Doc. 6) is denied as moot.
IT IS SO ORDERED.