Filed: Jun. 01, 2020
Latest Update: Jun. 01, 2020
Summary: Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 20, 2020 _ Christopher M. Wolpert Clerk of Court CHARLES D.J. BARNES, Plaintiff - Appellant, v. No. 19-2203 (D.C. No. 1:19-CV-00536-MV-KRS) UNITED STATES DISTRICT COURT; (D. N.M.) NEW MEXICO CORRECTIONAL FACILITY; EDDY COUNTY DETENTION CENTER; PNM, Defendants - Appellees. _ ORDER AND JUDGMENT* _ Before MATHESON,
Summary: Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 20, 2020 _ Christopher M. Wolpert Clerk of Court CHARLES D.J. BARNES, Plaintiff - Appellant, v. No. 19-2203 (D.C. No. 1:19-CV-00536-MV-KRS) UNITED STATES DISTRICT COURT; (D. N.M.) NEW MEXICO CORRECTIONAL FACILITY; EDDY COUNTY DETENTION CENTER; PNM, Defendants - Appellees. _ ORDER AND JUDGMENT* _ Before MATHESON, K..
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Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 20, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CHARLES D.J. BARNES,
Plaintiff - Appellant,
v. No. 19-2203
(D.C. No. 1:19-CV-00536-MV-KRS)
UNITED STATES DISTRICT COURT; (D. N.M.)
NEW MEXICO CORRECTIONAL
FACILITY; EDDY COUNTY
DETENTION CENTER; PNM,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
_________________________________
Charles Barnes, a state prisoner appearing pro se, appeals the district court’s
dismissal of his complaint under Federal Rule of Civil Procedure 41(b) for failure to
prosecute and to comply with court orders. He also requests leave to proceed in
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 2
forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm
the dismissal of his complaint and deny his ifp request.1
I. BACKGROUND
Mr. Barnes filed this action in the United States District Court for the District
of New Mexico, alleging violations of his civil rights in state court proceedings and
while incarcerated in state prison. He did not pay the court filing fee, see 28 U.S.C.
§ 1914(a), or move to proceed ifp, see id. § 1915(a). The district court entered an
order directing him to pay the fee or submit an ifp application within 30 days. The
court instructed the clerk’s office to send Mr. Barnes the proper application form. It
also advised Mr. Barnes that failure to cure this deficiency could result in dismissal.
Mr. Barnes did not comply with the order. He moved for leave to proceed on
appeal without prepayment of costs rather than submit the ifp form the court
provided. He also sent the court three letters that claimed they included payments for
the filing fee. None of the letters included payment.
The district court ordered Mr. Barnes to show cause why his complaint should
not be dismissed for failure to comply with the court’s earlier order. Despite having
more than two months to do so, Mr. Barnes did not address his failure to pay the
filing fee or submit the proper ifp application. He instead filed a request for an
1
Because Mr. Barnes is pro se, we construe his filings liberally, but we do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 3
evidentiary hearing and various documents concerning the merits of his alleged
claims.
The district court dismissed Mr. Barnes’s complaint without prejudice under
Federal Rule of Civil Procedure 41(b) for failure to prosecute and to comply with
court orders. It dismissed as moot his request for an evidentiary hearing. Mr. Barnes
timely appealed.
II. DISCUSSION
A. Legal Background
Federal Rule of Civil Procedure 41(b) authorizes a district court to sua sponte
dismiss an action for failure “to prosecute or to comply with [the Federal Rules of
Civil Procedure] or a court order.” Fed. R. Civ. P. 41(b); see Rogers v. Andrus
Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007). When, as here, a district court
dismisses a complaint under Rule 41(b) without prejudice, it “need not follow any
particular procedures.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co.,
497
F.3d 1135, 1143 n.10 (10th Cir. 2007) (quotations omitted).2
We review a Rule 41(b) dismissal for an abuse of discretion. See Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). “[U]nder what
2
Rule 41(b) dismissals with prejudice, by contrast, require application of the
multifactor test set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992). See Ecclesiastes
9:10-11-12, 497 F.3d at 1143-44; Olsen v. Mapes,
333
F.3d 1199, 1204 (10th Cir. 2003).
3
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circumstances such a dismissal would be justified, or to the contrary found to be
abuse of discretion, must depend on the procedural history of the particular case[]
involved.” Rogers, 502 F.3d at 1152 (quotations omitted).
B. Analysis
Mr. Barnes has not shown the district court abused its discretion in dismissing
his complaint. His brief on appeal discusses the merits of his underlying claims. See
Aplt. Br. at 2-4. It does not address his failure to comply with the court’s orders.
Mr. Barnes did not pay the filing fee or submit an ifp application, as required
to proceed in district court. See 28 U.S.C. §§ 1914(a), 1915(a). The district court
warned Mr. Barnes this deficiency could warrant dismissal, supplied the proper ifp
application form, and provided him ample opportunity to submit the form or pay the
fee. Mr. Barnes did neither. The court did not abuse its discretion in dismissing his
complaint without prejudice for failure to comply with its orders. See Ecclesiastes
9:10-11-12, 497 F.3d at 1143; Gonzales v. Bernalillo Cty. Dist. Ct., 640 F. App’x
759, 761 (10th Cir. 2016) (unpublished) (affirming Rule 41(b) dismissal without
prejudice when plaintiff failed to comply with court’s order to submit ifp materials
under § 1915(a)).3
3
Although not precedential, we find the reasoning of this unpublished opinion
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
4
Appellate Case: 19-2203 Document: 010110350085 Date Filed: 05/20/2020 Page: 5
Because Mr. Barnes has not advanced any “reasoned, nonfrivolous argument” in
support of his appeal, we deny his request to proceed ifp. Lister v. Dep’t of the Treasury,
408 F.3d 1309, 1312 (10th Cir. 2005).
III. CONCLUSION
We affirm the district court’s dismissal of Mr. Barnes’s complaint and deny
his ifp request.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
5
