DeMun Walker v. Galbreth

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1210
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DeMun D. Walker, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Galbreth, COII; Higgenbotham, *
COI; McCormack, COI; Neff, COI; * [UNPUBLISHED]
Nowcha, COI; Heyer, COI, Stickler, *
COI; Abel, COI; Williams, COI; *
Siefier, COI; Lewis, COI; Wilson, *
COI; Muelluer, COI; R. Mobly, *
CCW; J. Ellis, FUM; Jefferson City *
Correctional Center; Mike Kemna; *
Robin Thorne, *
*
Appellees. *
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Submitted: June 30, 2010
Filed: July 12, 2010
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Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Missouri inmate DeMun Walker appeals the district court’s1 dismissal of his
42 U.S.C. § 1983 complaint without prejudice under Fed. R. Civ. P. 41(b) for failure
to comply with a court order. Upon careful review, we conclude that the district court
did not abuse its discretion in dismissing Walker’s complaint, because the record
shows that after the magistrate issued an order assessing an initial partial filing fee
based on Walker’s inmate account statement and directing Walker to authorize the
payment, Walker merely objected to the fee, stated that it was “non-tenable,” and
indicated that he did not want to pay it. See Smith v. Gold Dust Casino, 526 F.3d 402,
404-05 (8th Cir. 2008) (Rule 41(b) dismissal is reviewed for abuse of discretion); see
also Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (if prisoner has means
to pay partial filing fee and fails to do so, district court may dismiss action under Rule
41(b) for failure to comply with court order); Burgs v. Sissel, 745 F.2d 526, 528 (8th
Cir. 1984) (per curiam) (court may sua sponte dismiss action if plaintiff fails to
comply with court order).
Accordingly, we deny the pending motions, and we affirm. See 8th Cir. R.
47B.
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1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
William A. Knox, United States Magistrate Judge for the Western District of
Missouri, now retired.
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