Banks v. Matevousian ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 9, 2019
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Elisabeth A. Shumaker
Clerk of Court
JOSE JOSEPH BANKS,
Petitioner - Appellant,
v. No. 19-1178
(D.C. No. 1:19-CV-00582-LTB)
ANDRE MATEVOUSIAN, Complex (D. Colo.)
Warden, ADX Florence,
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
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In February 2019, Petitioner Jose Joseph Banks filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 and a motion for leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. On March 1, 2019, the magistrate judge
entered an order noting Petitioner’s in forma pauperis motion was deficient because
the “account statement [Petitioner] submitted is not certified and does not show the
current balance in [Petitioner’s] prisoner account as of the date he filed this action.”
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
ROA at 75. The magistrate judge explained the petition would be dismissed within
thirty days if Petitioner did not cure the deficiencies. On March 11, Petitioner filed an
Inmate Account Statement, revealing he had $90.14 in his account. On March 26, the
district court denied Petitioner’s in forma pauperis motion because Petitioner had
sufficient funds to pay the $5.00 filing fee. The court ordered that Petitioner “shall
pay the $5.00 filing fee within thirty days from the date of this Order if he wishes to
pursue his claims in this action.” ROA at 79. Otherwise, “the action will be dismissed
without further notice.” Id. After over a month of complete silence and inactivity from
Petitioner, the district court indeed dismissed the action without prejudice for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b). In its order dismissing the action, the
court also certified pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of the order
would not be taken in good faith and, thus, denied in forma pauperis status for purposes
of appeal. Petitioner filed a timely notice of appeal, arguing “he had not intentionally
refused or withheld owed filing fees but were [sic] in fact diligent, more than willing
and made every attempt at meeting said payment.” Op. Br. at 1.
A district court may dismiss an action sua sponte “[i]f the plaintiff fails to
prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b); Olsen v. Mapes,
333 F.3d 1199, 1204 n.3 (10th Cir. 2003). We review such a dismissal for abuse of
discretion. Olsen, 333 F.3d at 1204. Petitioner clearly failed to comply with the court’s
order. The responsibility to timely make the payment and to communicate with the
court lies with Petitioner, not with the ADX staff or with a friend. Because Petitioner
failed to pay the filing fee by the court’s deadline and failed to otherwise respond to
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the court’s order for over thirty days, the court did not abuse its discretion in dismissing
the action. We highlight to Petitioner that his action was dismissed “without
prejudice”—meaning he may refile and pursue his § 2241 application in a new case
provided he follows the lower court’s orders.
Additionally, Petitioner filed a motion for leave to proceed in forma pauperis
on appeal. The district court was quite right in its order certifying any appeal would
not be taken in good faith. Accordingly, we DISMISS this appeal and DENY his
motion for leave to proceed in forma pauperis.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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