Opinion
24-3159-JWL
10-31-2024
BRIAN MICHAEL WATERMAN, Plaintiff, v. CHEROKEE COUNTY, KANSAS, BOARD OF COMMISSIONERS, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff, Brian Michael Waterman, who is in custody at the Cherokee County Jail in Columbus, Kansas, brings this pro se civil rights case. On September 27, 2024, the Court entered a Memorandum and Order to Show Cause (Doc. 3) (“MOSC”) denying Plaintiff leave 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 found no showing of imminent danger of serious physical injury. The Court also granted Plaintiff until October 28, 2024, to either submit the $405.00 filing fee or to show good cause, in writing to the undersigned, why the three strikes provision of 28 U.S.C. § 1915(g) should not apply. The MOSC provides that “[t]he failure to respond by the deadline will result in the dismissal of this matter without prejudice and without additional prior notice.” (Doc. 3, at 3.) Plaintiff has failed to either pay the filing fee or to respond by the deadline set forth in the MOSC.
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).
Plaintiff has failed to pay the filing fee or to respond by the deadline set forth in the Court's order. 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 ORDERED BY THE COURT that this action is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
IT IS SO ORDERED.