Opinion
24-3182-JWL
12-06-2024
RAY FLOYD GARCIA, JR., Plaintiff, v. JEFF ZMUDA, et al., Defendants.
ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff is confined at the El Dorado Correctional Facility in El Dorado, Kansas. On October 16, 2024, the Court issued a notice of deficiency (“NOD”) (Doc. 3) ordering Plaintiff to satisfy the statutory filing fee by either paying the fee of $405.00 or filing a motion to proceed without prepayment of fees along with the financial information required by 28 U.S.C. § 1915(a)(2). The NOD provides that the failure to comply by November 15, 2024, may result in the dismissal of this matter without further notice. Id. at 2. Plaintiff has not complied as of the date of this Order.
Plaintiff did file a response to the NOD. (Doc. 4.) He alleges that his legal mail has been delayed and tampered with, but he does not provide the filing fee or a motion to proceed without prepayment of fees. He states that he “going to have to dismiss” his case and will refile it after he contacts the United States Justice Department. Id. at 1.
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. United States, 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).
Plaintiff has failed to comply with the NOD by the Court's deadline. Therefore, Plaintiff's Complaint is dismissed without prejudice pursuant to Rule 41(b).
IT IS THEREFORE ORDERED that this matter is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
IT IS FURTHER ORDERED that Plaintiff's motion appointment of counsel (Doc. 2) is denied as moot.
IT IS SO ORDERED.