United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
SHERRI PRICE, et al., Defendants.
D. Crabtree, United States District Judge
Patrick C. Lynn, brings this pro se civil rights case under
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Lansing Correctional Facility in Lansing, Kansas. On August
30, 2019, the court entered an Order (Doc. 9) denying
plaintiff’s motion for leave to proceed in forma
pauperis (Doc. 2), and denying plaintiff’s Motion for
Filing Fee Waiver Based on Imminent Dangers of Serious
Physical Injury (Doc. 3). The Order required plaintiff, who
is a three-strikes litigant, to submit the $400 filing fee by
September 13, 2019. The Order also notified plaintiff that
his failure to pay the full filing fee within the allowed
time would result in dismissal of his action without
prejudice. Instead of complying with the Order, plaintiff
filed a Notice of Interlocutory Appeal (Doc. 10) on September
court’s ruling on plaintiff’s motions does not
warrant certification of an interlocutory appeal. The Tenth
Circuit Court of Appeals has jurisdiction to hear appeals
only from “final decisions” of district courts.
Larson-White v. Rohling, No. 08-3246-SAC, 2008 WL
5427783, at *1 (D. Kan. Dec. 31, 2008) (citing 28 U.S.C.
§ 1291). “In light of this statutory limitation,
interlocutory appeals are the exception and not the
rule.” Id. (citing Myers v. Oklahoma Cty.
Bd. of Comm’rs., 80 F.3d 421, 424 (10th Cir.),
cert. denied, 519 U.S. 963 (1996) (citing
Johnson v. Jones, 515 U.S. 304, 308 (1995)); see
also Carpenter v. Boeing Co., 456 F.3d 1183, 1189 (10th
Cir. 2006) (“Interlocutory appeals have long been
disfavored in the law, and properly so.”).
court must evaluate an interlocutory appeal under 28 U.S.C.
§ 1292(b), which provides for appeals from interlocutory
decisions in limited circumstances. Section 1292(b) provides
in pertinent part:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order. The
Court of Appeals . . . may thereupon, in its discretion,
permit an appeal to be taken from such order, if application
is made to it within ten days after the entry of the order.
Provided, however, that application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
28 U.S.C. § 1292(b). Certifying an interlocutory appeal
under § 1292(b) is “limited to extraordinary cases
in which extended and expensive proceedings probably can be
avoided by immediate and final decision of controlling
questions encountered early in the action.”
Larson-White, 2008 WL 5427783, at *1 (citing
State of Utah By and Through Utah State Dep’t of
Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th
Cir.) (citing S. Rep. 2434, 1958 U.S.C.C.A.N. at 5262),
cert. denied, 513 U.S. 872 (1994)).
court does not find that an immediate appeal from the
court’s non-dispositive order could materially advance
the ultimate resolution of this matter. The court’s
ruling does not involve a controlling question of law on
which there is substantial ground for difference of opinion.
The court thus declines to order certification of this case
for interlocutory appeal.
court denied plaintiff leave to proceed in forma pauperis at
the district court level and plaintiff has not satisfied the
district court filing fee prerequisite. As a three-strikes
litigant, he likewise is not entitled to appeal
without prepaying the appellate filing fee unless he shows
imminent danger arising from the allegations raised in his
Complaint or appeal. The court finds that plaintiff has not
shown imminent danger as set forth in the court’s
Order, Doc. 9. Therefore, the court also denies plaintiff
leave to appeal in forma pauperis. Section 1915(g) prohibits
a three-strikes prisoner from bringing a civil action or
appeal “unless the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
Because plaintiff has not shown that he meets the only
exception set forth in § 1915(g), the court denies leave
to appeal in forma pauperis.
this court warned plaintiff that his case is not
automatically stayed by an interlocutory appeal. See,
e.g., Lynn v. Willnauer, No. 19-3117-JAR, Doc. 16, at 3.
Thus, the time set by the court for plaintiff to pay the
district court filing fee in full or suffer dismissal of this
case has passed. Plaintiff has failed to pay the filing fee
by the court’s deadline.
41(b) of the Federal Rules of Civil Procedure
“authorizes a district court, upon a defendant’s
motion, to order the dismissal of an action for failure to
prosecute or for failure to comply with the Federal Rules of
Civil Procedure or ‘a court order.’”
Young v. U.S., 316 F. App’x 764, 771 (10th
Cir. 2009) (citing Fed.R.Civ.P. 41(b)). “This rule has
been interpreted as permitting district courts to dismiss
actions sua sponte when one of these conditions is
met.” Id. (citing Link v. Wabash R.R.
Co., 370 U.S. 626, 630–31 (1962); Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
“In addition, it is well established in this circuit
that a district court is not obligated to follow any
particular procedures when dismissing an action without
prejudice under Rule 41(b).” Young, 316
F. App’x at 771–72 (citations omitted).
has failed to submit the required filing fee by the
court’s deadline. As a consequence, the court dismisses
this action without prejudice pursuant to Rule 41(b) for
failure to comply with court orders.
IS THEREFORE BY THE COURT ORDERED that the court
declines to certify plaintiff’s interlocutory appeal
(Doc. 10), and denies plaintiff leave to proceed without
prepayment of fees on appeal.
IS FURTHER ORDERED that this action is
dismissed without prejudice pursuant to
IS FURTHER ORDERED that plaintiff’s pending
motions (Docs. 4, 5, ...