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United States Court of Appeals, Tenth Circuit.

Charles D.J. BARNES, Plaintiff - Appellant, v. UNITED STATES DISTRICT COURT; New Mexico Correctional Facility; Eddy County Detention Center; PNM, Defendants - Appellees.

No. 19-2203

Decided: May 20, 2020

Before MATHESON, KELLY, and EID, Circuit Judges. Charles Barnes, Pro Se


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 forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of his complaint and deny his ifp request.1


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 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.


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 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

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).


We affirm the district court's dismissal of Mr. Barnes's complaint and deny his ifp request.


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.   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.   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.

Scott M. Matheson, Jr., Circuit Judge

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