Opinion
CIVIL ACTION No. 11-3087-SAC.
July 29, 2011
MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983 by a prisoner in state custody. By an order entered on June 16, 2011, the court directed plaintiff to submit an initial partial filing fee and to show cause why his claim seeking damages for unlawful incarceration should not dismissed without prejudice and why an unrelated claim concerning the use of a taser against him in 2007 should not be dismissed as time-barred. Plaintiff was advised the failure to file a timely response might result in the dismissal of this matter without additional prior notice, but he has filed no response.
A federal court has the inherent power to act sua sponte to dismiss an action for failure to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962). Federal Rule of Civil Procedure 41(b) authorizes the involuntary dismissal of an action for failure to prosecute or to comply with procedural rules or orders of the court. While the text of Rule 41(b) contemplates such dismissal upon the motion of a defendant, the Rule has been interpreted to allow the sua sponte dismissal of an action. Link, id.; Rogers v. Andrus Transp. Services, 502 F.3d 1147, 1151 (10th Cir. 2007). See also Theede v. U.S. Department of Labor, 172 F.3d 1262 (10th Cir. 1999) (affirming dismissal where pro se plaintiff's failure to object to magistrate judge's recommendation of dismissal was due to plaintiff's failure to inform the court of his correct address).
The court finds plaintiff has been given notice of the court's intention to dismiss this matter in the absence of a response from him and concludes this matter should be dismissed for the reasons, and upon the terms, set forth in its order of July 16, 2011.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed for lack of prosecution.
IT IS FURTHER ORDERED plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) is denied.
Copies of this order shall be transmitted to the parties.